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Full Opinion
United States Court of Appeals
For the First Circuit
No. 23-1227
JEFFREY A. NEECE,
Plaintiff, Appellant,
v.
CITY OF CHICOPEE,
Defendant, Appellee,
SHARYN RILEY,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Montecalvo, Lipez, and Rikelman,
Circuit Judges.
Emily Smith-Lee, with whom SLN Law, LLC was on brief, for
appellant.
Meredith G. Fierro, with whom CEK Boston, P.C. was on brief,
for appellee.
June 27, 2024
RIKELMAN, Circuit Judge. Jeffrey Neece sued the City of
Chicopee after the mayor decided not to renew Neece's employment
contract. During a jury trial, the parties presented very
different accounts of why Neece lost his job. The mayor claimed
that Neece was not productive or responsive to his colleagues and
had alienated key stakeholders. Neece claimed that the mayor
retaliated against him because Neece's testimony in a
gender-discrimination case against the city undermined the city's
defense. After hearing from both Neece and the mayor, as well as
a dozen other witnesses, the jury rejected Neece's retaliation
claims. Neece now argues that he is entitled to a new trial
because the district court limited the evidence he could present
about what he views as a key event: a closed-door meeting between
the city's attorneys and the city council about the merits of the
gender-discrimination case and the impact of Neece's testimony.
We conclude that the district court did not abuse its discretion
in limiting evidence about this meeting, which the mayor did not
attend, after Neece was unable to show that the mayor ever learned
about the details of the meeting. We therefore uphold the jury's
verdict and affirm.
I. BACKGROUND
A. Relevant Facts
Neece's appeal focuses on "a number of the district
court's evidentiary rulings," so we "recite the facts in a
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'balanced' manner in which we 'objectively view the evidence of
record.'" United States v. Amador-Huggins, 799 F.3d 124, 127 (1st
Cir. 2015) (quoting United States v. Burgos–Montes, 786 F.3d 92,
99 (1st Cir. 2015)).
1. Neece's Role in City Government
In 2013, the then-mayor of Chicopee, Michael
Bissonnette, appointed Neece as the superintendent of the
Department of Public Works ("DPW"). Under his employment contract,
Neece was appointed to a five-year term from June 17, 2013, to
June 30, 2018. In early 2014, Richard Kos took office as mayor,
after defeating Bissonnette in the November election. Kos ("the
mayor") then became Neece's direct supervisor for the rest of
Neece's contract with the city.
As the superintendent of DPW, Neece was responsible for
supervising nine departments that work to improve and maintain the
city's infrastructure, including the highway, parks, water, and
sanitation departments, as well as the Central Maintenance Garage.
The garage, which figures prominently in this case, repairs city
vehicles (and should not be confused with a parking garage).
At trial, the parties presented competing narratives
about Neece's job performance. For instance, the mayor testified
that he initially had a favorable impression of Neece, but, during
his first year in office, he began to "los[e] faith in [Neece's]
decision-making." He attributed that change to several key events,
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including Neece's recommendation that the city purchase an $80,000
asphalt recycler to fix potholes. After Neece advocated for the
equipment, the mayor expended political capital to convince the
city council to approve the purchase, only to have Neece discover
later that the recycler would not work properly. The mayor was
disappointed, not only because he felt Neece could have discovered
that fact earlier, before the mayor made the pitch to the city
council, but also because Neece did not inform him that the
equipment was never purchased; the mayor learned of that fact only
months later, when he happened to ask Neece how the recycler was
working. The mayor also discussed Neece's delay in providing
essential information for a state grant application that had to be
submitted in person in Boston, which caused the application to be
delivered at the last minute. By contrast, Neece explained that,
although the city council had appropriated funding for the
recycler, he realized the problem with the equipment before any
city money was used to purchase it, and the mayor never expressed
any concerns regarding this incident at the time. Neece also
testified that, while he was DPW superintendent, the city did not
miss out on any grant opportunities.
Other city employees who testified at trial corroborated
the mayor's account, though, again, Neece offered a different
version of events. The employees stated that Neece was often
difficult to reach, did not respond to questions or concerns raised
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in emails, and handled employee discipline inappropriately. For
example, they recounted that Neece disciplined several
water-department employees for not plowing snow during a snowstorm
even though they were not obligated to do so and two of the
employees were not even scheduled to work the day of the storm. A
union then filed grievances against the city on behalf of some of
those employees, leading the city to retract the discipline. Also,
one veteran DPW employee testified that working under Neece's
supervision was so challenging that he opted to retire early. Yet,
Neece, for his part, described the many hours he dedicated to the
nine departments under his supervision and asserted that human
resources and the city's legal department reviewed the
disciplinary letters he sent to the water-department employees.
2. The Huber Case and Neece's Testimony
Neece's retaliation claims in this case hinge on his
testimony in a lawsuit against the city ("the Huber case"), which
challenged a hiring decision at the Central Maintenance Garage.
In December 2015, the city posted a job opening for a motor
equipment repair person at the garage. One woman, Nicholle Huber,
applied for the job and was rated as the top candidate by those
who interviewed her. The job posting stated that the position
would require the employee to lift and/or move up to 100 pounds.
But during Huber's interview, Neece, who believed he had final say
on all hiring decisions within DPW departments, told Huber that
- 5 -
she did not need to meet the lifting requirement. And yet, Huber's
job offer was rescinded when she could not lift 100 pounds during
a pre-employment physical examination. Huber sued the city,
alleging that it had discriminated against her on the basis of
gender during the hiring process.
In October 2017, Neece provided deposition testimony in
Huber's case. He testified that, the day after Huber was
interviewed, he and his assistant spoke to Alfred Ryczek, the head
of the Central Maintenance Garage. According to Neece, Ryczek
told them that he was afraid of a sexual-harassment suit if a woman
were hired to work at the garage, that he was concerned about what
the city would do if Huber became pregnant, and that men in the
garage already were making derogatory jokes about how they would
behave in Huber's presence.1 In addition, Neece testified that he
informed the director of human resources, as well as the city
solicitor, that if the city did not hire Huber even though she was
the best qualified candidate, it may face a gender-discrimination
lawsuit and would "basically be defenseless" because of Ryczek's
comments and Huber's hiring process. Neece also testified that he
told the mayor what Ryczek had said about hiring a woman to work
in the garage. Emails between Neece and his assistant documenting
1 Ryczek admitted he told Neece's assistant he was concerned
about what he would do if Huber became pregnant "[b]ecause there
was no light duty in the garage," but he denied making any of the
other comments Neece described.
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Ryczek's comments were exchanged as part of discovery in the case.
3. The City Council Executive Session
Following mediation in the Huber case, Marshall
Moriarty, the city solicitor, and Mark Albano, the city's lead
trial attorney for the case, met with the mayor and recommended
that the city settle the lawsuit for $140,000. The mayor accepted
the recommendation but needed the city council to approve the
settlement and appropriate the funds.
So, pursuant to the mayor's order, the city council held
an executive session -- a non-public meeting -- on April 24, 2018,
to consider whether to approve the settlement. The mayor was not
present at the executive session.
Neece's evidentiary challenges on appeal center on the
details of this meeting. There, Albano discussed with city council
members the merits of the Huber case, why he believed it was in
the city's best interest to settle, and Neece's role in the case.
Albano explained that the lawsuit was "one of the better, if not
the best employment discrimination cases [he had] ever seen"
because Huber had "direct evidence of discrimination." That
evidence, he stated, came from Neece and Neece's assistant, who
"indicated that Al [Ryczek] said to them[:] [W]e don't want women
in the garage. . . . I'm deathly afraid of having women there. I
know it's discriminatory[,] but it is what it is."
According to Albano, Neece had testified in his
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deposition that he considered Ryczek's statements to be
discriminatory and Huber to have been treated unfairly because
Neece told her that being able to lift 100 pounds was not important
for the job. Albano also noted that "[g]enerally, the Chicopee
employees, the director of the department, [and] the assistant
director are [the city's] best witnesses," but "[i]n this case
they're [the city's] nightmare witnesses." Although those
witnesses "swore to tell the truth and must believe they're telling
the truth," he explained, "it's a truth that is very unpalatable
from the [c]ity's point of view in terms of prevailing in this
case." Because the potential damages and attorneys' fees award
could far exceed the $140,000 settlement amount, Albano
recommended that the city council approve the settlement. In doing
so, he stated that "[i]t's very unpalatable in the mayor's office
and in the law department to be paying this amount of money, but
the case represents a series of missteps and
mistakes . . . that . . . have mushroomed . . . into a big
problem."
Following Albano's presentation, several city council
members expressed their frustration with Huber's hiring process
and the department-head infighting it reflected. One city council
member told Albano: "I hope that you'll take the message back to
the [m]ayor that we need some in service training, so that they
get on the same page when hiring people.
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That . . . nobody . . . should be undercutting the other guy,
because it just means we're gonna lose if they go to court."
Similarly, city council members were displeased that Neece and
Ryczek could not "work together" with the human resources
department to determine whether the lifting requirement could be
waived. One member, Joel McAuliffe, requested "information from
the [m]ayor and from the law department to at least let [the city
council] know what has been done to address the issues that allowed
this to transpire," especially because those involved in the hiring
process were "still in leadership positions" in city government.
Another asked whether Neece had been disciplined for "[t]elling
someone something that wasn't true." Albano advised not taking
disciplinary action while the case was pending to avoid the
appearance of retribution or retaliation.
In an open session held one week later, the city council
voted to appropriate $140,000 to settle the Huber case.
4. Non-Renewal of Neece's Contract
Meanwhile, in March 2018, after Neece's deposition
testimony in the Huber case but before the city attorneys advised
the mayor to accept the proposed settlement, the mayor issued a
written warning to Neece about his job performance. The warning
summarized several alleged deficits with Neece's work, identified
corrective actions, and requested that Neece submit weekly reports
on his projects. This was the first time the mayor documented any
- 9 -
perceived concerns with Neece's performance. The mayor testified
at trial that he was prompted to issue the March warning because
Neece had recently sent an email to members of the parks and
recreation commission, who are volunteers, insisting they hire his
preferred candidate to be the superintendent of the parks
department. The mayor believed the email "verged on bullying."
The mayor went on to testify that, when he reviewed Neece's weekly
reports, he observed that the same projects were reported each
week with minimal progress, leaving him "disillusioned."
According to Neece, however, some of the projects were ones he was
already working on, and others were long-term tasks that would
take time to complete.
In April 2018, two months before Neece's contract was
set to expire, the mayor informed Neece that he planned to
advertise the position of DPW superintendent and solicit new
candidates, but that Neece could still apply for the position. On
June 28, 2018, the mayor told Neece he was not renewing Neece's
contract.
B. Legal Proceedings
Neece sued the city in 2019, alleging that the mayor
declined to renew his contract as retaliation for the deposition
testimony he gave in the Huber case, in violation of Title VII of
the Civil Rights Act of 1964 and the Massachusetts Whistleblower
Act.
- 10 -
Both parties filed pre-trial motions related to the city
council executive session. A few weeks before the first scheduled
trial date, Neece filed a motion seeking an adverse inference
instruction, or the exclusion of certain evidence, based on the
city's failure to record or otherwise memorialize the executive
session. In response, the city revealed that an audio recording
of the executive session did exist; however, it then filed a
separate motion to exclude any evidence regarding the meeting. It
argued that, at the meeting, the city's attorneys were providing
their legal assessment to the city council about a pending lawsuit
against the city, so attorney-client privilege and the attorney
work-product doctrine protected the recording.
The district court denied the city's motion. It
determined that (1) during discovery the city waived the
attorney-client privilege that would otherwise apply to the
executive session by allowing two deposition witnesses to answer
general questions about the discussions at the meeting, and (2) the
work-product doctrine did not apply. Further, the district court
explained, even if attorney-client privilege protected the
communications at the executive session, the city still would have
to produce the recording for the following reason: "Whether
[Neece's] role in the Huber litigation was discussed at the
4/24/2018 executive session is central to his claim of pretext.
Two witnesses present at the meeting have offered conflicting
- 11 -
testimony about whether [Neece's] role was discussed, and the
recording offers the only means to resolve the discrepancy." The
court's order addressed only whether the recording had to be
provided to Neece as part of the pre-trial discovery process. The
court stated that it would decide later if the recording could be
admitted as evidence during the trial itself.
The court then ordered the city to produce the recording
and a transcript. But it "recognize[d] the sensitive nature of
some of the material in the recording and the possibility that
portions would be inadmissible at trial for reasons including
likelihood of confusion or unfair prejudice." Accordingly, the
court directed Neece to seek rulings on the admissibility of
portions of the recording by filing another pre-trial motion, which
Neece did. Ultimately, however, the court denied Neece's motion,
stating that it would rule on admissibility during trial.
The case proceeded to a jury trial, which took place
over thirteen days in January 2023. The city's central defense
was that the mayor did not renew Neece's contract because he was
dissatisfied with Neece's job performance, not because Neece's
deposition testimony supported Huber's gender-discrimination
claim. To that end, the city called seven employees over the
course of three days, including Ryczek, the city's director of
human resources, the mayor's former chief of staff, the chair of
the parks commission, two veteran DPW employees, and Neece's
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replacement, all of whom had interacted with Neece and testified
that they alerted the mayor to his unresponsiveness and lack of
productivity. In turn, to prove his retaliation claims, Neece
testified on his own behalf and called as witnesses Huber, three
city council members, city attorneys Albano and Moriarty, his
former assistant, and the mayor.
During the trial, the parties debated the admissibility
of the executive session discussions. On direct examination, Neece
questioned members of the city government about statements made at
the meeting, and he later attempted to introduce portions of the
transcript. The district court limited some of the witness
testimony and excluded the transcript. The court's rationale was
that the mayor, not the city council, decided not to renew Neece's
contract. And because the parties agreed that the mayor was not
at the meeting, Neece had to "connect some dots" between the
meeting and the mayor. Specifically, he had to demonstrate that
the mayor "had th[e] information" conveyed at the executive
session, either because he knew about it before the meeting or
learned about it afterwards, for it to be relevant at trial. But,
despite repeated attempts, the court determined that Neece never
connected those dots. When Neece's witnesses were asked whether
they told the mayor about what was said at the executive session,
they all said no. Critically, Neece also asked the mayor directly
whether, before he decided not to renew Neece's contract, he
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learned of questions or concerns that city council members raised
in the executive session. The mayor answered that he did not.
Thus, the district court ruled that testimony from the
city attorneys and city council members about specific statements
they made at the meeting, as well as the meeting transcript, was
not relevant to Neece's retaliation claims. Further, it determined
that certain questions about Albano's presentation to the city
council were cumulative, would only waste time, and would confuse
the jury, essentially by creating a mini-trial of the Huber case.
Finally, the court precluded testimony by the mayor recounting
Albano's advice to him about the Huber settlement, finding those
conversations protected by attorney-client privilege that the city
had not waived.
The jury returned a defense verdict. On the Title VII
claim, it found that Neece had proven that he engaged in protected
activity and experienced an adverse employment action but failed
to establish a causal link between the mayor's non-renewal of his
contract and his role in the Huber case. On the Massachusetts
whistleblower claim, the jury found that Neece had proven that he
disclosed and objected to an activity he reasonably believed
violated the law but failed to demonstrate that the city retaliated
against him because he did so. This timely appeal followed.
II. STANDARD OF REVIEW
We review Neece's preserved objections to the district
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court's evidentiary rulings for abuse of discretion. See United
States v. Rathbun, 98 F.4th 40, 47 (1st Cir. 2024) (examining
admissibility of witness testimony under this standard); Cavallaro
v. United States, 284 F.3d 236, 245 (1st Cir. 2002) (explaining
that abuse-of-discretion standard applies to evidentiary
determinations concerning a claim of privilege). "An abuse of
discretion occurs 'when a material factor deserving significant
weight is ignored, when an improper factor is relied upon, or when
all proper and no improper factors are assessed, but the court
makes a serious mistake in weighing them,'" including by making an
error of law. Lech v. von Goeler, 92 F.4th 56, 63-64 (1st Cir.
2024) (quoting Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161
F.3d 77, 83 (1st Cir. 1998)).
Even if we determine that a district court's evidentiary
ruling was erroneous, however, we will not disturb the jury's
verdict if the error was harmless, that is, "if it is highly
probable that the error did not affect the outcome of the case."
McDonough v. City of Quincy, 452 F.3d 8, 19–20 (1st Cir. 2006).
III. DISCUSSION
Neece seeks a new trial on the ground that the district
court abused its discretion by limiting evidence about the
executive session. The court limited this evidence on various
grounds, concluding that some was not relevant; some was cumulative
or likely to waste time or confuse the issues; and some was
- 15 -
protected by attorney-client privilege. We address each ground in
turn.
Ultimately, we determine that the district court did not
abuse its discretion in any of these rulings. Neece's own
witnesses undercut his claim that the mayor learned about what
city council members said at the meeting. Thus, the court did not
abuse its discretion in finding that those statements were not
relevant to the mayor's state of mind or alleged retaliatory
motive. The city solicitor also testified that Albano recommended
settling the Huber case because he thought it had merit, and the
record backs up the district court's view that further questions
on this topic would waste time and distract from the main
retaliation issue in this case. And, importantly, Neece was able
to ask the mayor directly about his knowledge of the topics
discussed at the executive session: the Huber settlement, Neece's
role in that case, and concerns city council members raised at the
meeting. Finally, the facts supported the court's ruling that
certain communications between Albano and the mayor were
privileged.
A. Relevance
We start with the district court's exclusion of evidence
on relevance grounds. Under Federal Rule of Evidence 401, evidence
is relevant if "it has any tendency to make a fact" that is "of
consequence in determining the action" "more or less probable than
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it would be without the evidence." Fed. R. Evid. 401. We have
explained that, "to be relevant, the evidence need not definitively
resolve a key issue in the case" but rather "need only move the
inquiry forward to some degree." Rathbun, 98 F.4th at 51. "Given
that relevancy is a quintessential judgment call, we 'give trial
judges considerable leeway in deciding whether the contested
evidence satisfies'" the relevance standard. Id. (quoting
Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir. 2010)).
Relevance is "determined on a case-by-case basis, in
light of both the particular factual context and the applicable
law." Daumont-Colón v. Cooperativa de Ahorro y Crédito de Caguas,
982 F.3d 20, 28 (1st Cir. 2020). Thus, we begin with the elements
that Neece needed to prove to succeed on his retaliation claims
under federal and state law.
Under Title VII, it is illegal for an employer to
retaliate against an employee for "oppos[ing] any practice made an
unlawful employment practice by [Title VII itself]." 42 U.S.C.
§ 2000e–3(a). To establish a prima facie case of retaliation, a
plaintiff must prove that (1) they "engaged in protected activity
under Title VII," (2) they "suffered an adverse employment
action," and (3) "the adverse employment action was causally
connected to the protected activity." Collazo v. Bristol–Myers
Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010). To establish
participation in a protected activity, "the plaintiff need not
- 17 -
show that the conditions [they] opposed 'actually amounted to a
violation of Title VII.'" Id. at 48 (quoting Fantini v. Salem
State Coll., 557 F.3d 22, 32 (1st Cir. 2009)). Rather, they must
show only that they had "a good faith, reasonable belief that the
underlying challenged actions" amounted to discrimination. Id.
(quoting Fantini, 557 F.3d at 32). If "the plaintiff establishes
a prima facie case of retaliation, the burden shifts to the
defendant to articulate a legitimate, non-retaliatory reason for
its employment decision." Id. at 46. If the defendant does so,
"the burden shifts back to [the plaintiff] to show that the
proffered legitimate reason is in fact a pretext and that the job
action was the result of the defendant's retaliatory animus." Id.
(alteration in original) (citation omitted).
The Massachusetts Whistleblower Act likewise prohibits
an employer from retaliating against an employee who
"[d]iscloses . . . to a supervisor or to a public body" or
"[o]bjects to, or refuses to participate in an[] activity, policy
or practice which the employee reasonably believes is in violation
of a law." Mass. Gen. Laws ch. 149, § 185(b)(1), (3). To prevail
on a claim under the statute, a plaintiff must show that they
"engaged in protected activity and that [their] participation in
that activity played a substantial or motivating part in the
retaliatory action." Welch v. Ciampa, 542 F.3d 927, 943 (1st Cir.
2008).
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Thus, the critical issue in this case was whether the
mayor -- the person who decided not to renew Neece's contract --
acted with a retaliatory motive when he did so. Accordingly, as
the district court emphasized, for the contents of the executive
session to be relevant, Neece had to forge some link between what
took place at the meeting and the mayor.
We see no error in the district court's reasoning that
what was said at the meeting was relevant only if the mayor knew
about it. See Theidon v. Harvard Univ., 948 F.3d 477, 508 & n.44
(1st Cir. 2020) (finding that emails by "one of many voices in a
chorus cautioning [university president] against promoting" the
plaintiff did not support an inference of retaliation given that
the university president, not the writer of the emails, "had the
final say" on the plaintiff's promotion); Vélez v. Thermo King de
P.R., Inc., 585 F.3d 441, 452 (1st Cir. 2009) ("[I]n assessing
pretext, a court's focus must be on the perception of the
decisionmaker."). After all, the parties did not dispute that the
mayor, as opposed to the city council as a body or its individual
members, was the one who opted not to renew the contract. And
Neece attempted to offer the conversations that occurred at the
executive session to prove the mayor's alleged retaliatory motive,
to the extent the mayor was "influenced" by the discussions at the
meeting.
Against this backdrop, the district court did not abuse
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its discretion in determining that certain testimony about
statements at the meeting and portions of the meeting transcript
were not relevant to the mayor's motive for ending Neece's
employment. That is because, as we proceed to explain, the
evidence did not reasonably support the inference that the mayor
knew about what was said at the meeting.
According to Neece, he should have been able to introduce
at trial statements by city council members calling for his
discipline -- calls that, he points out, "were requested to be
conveyed to the [m]ayor." The problem, however, is that the mayor
himself denied ever hearing about these concerns or demands.2
Further, Neece's own witnesses who were present at the meeting
likewise denied talking to the mayor about what was said there.
City council members McAuliffe and Frank Laflamme testified that
they did not speak to the mayor about the executive session. And
Neece contends that city council members called "for there
2
to be some kind of discipline or consequences for [him] as a result
of his involvement in [the Huber] case," that is, his deposition
testimony that was unfavorable to the city. By contrast, the city
maintains that city council members asked whether Neece would face
repercussions for erroneously telling Huber that she did not need
to meet the 100-pound lifting requirement. The transcript
plausibly supports the city's interpretation, and, to the extent
the district court relied on that same view of the transcript, it
did not abuse its discretion. See Clukey v. Town of Camden, 894
F.3d 25, 34 (1st Cir. 2018) (explaining that, under the
abuse-of-discretion standard, we will leave a district court's
ruling undisturbed if we are not "left with a 'definite and firm
conviction that the court below committed a clear error of
judgment'" (citation omitted)).
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the only remaining city-council-member witness stated that he did
not know if "what went on at that meeting" was communicated back
to the mayor. Neece also asked Moriarty and Albano whether they
reported to the mayor what happened at the meeting or knew if
anyone else did. Both stated that, in the normal course, someone
would update the mayor about the meeting but that they did not
update him and had no knowledge of anyone else doing so either.
For similar reasons, the district court did not abuse
its discretion in excluding portions of the transcript of the
executive session, which Neece tried to introduce before resting
his case. The court ruled that the transcript was inadmissible
because it was not relevant, stating that Neece "had ample
opportunity to question the relevant witnesses . . . about this
information [from the executive session] being made known to [the
mayor], who was the decision-maker[,] . . . and it just wasn't
there." The record supports the court's assessment. As the court
observed, by the time Neece sought to introduce the transcript, he
had already asked the mayor himself, city council members, and the
city attorneys about whether the discussions at the meeting ever
got back to the mayor. Not a single witness could confirm that
they did.
Further, to the extent Neece sought to prove that his
deposition testimony and the Huber settlement were "unpalatable"
to the mayor or that his deposition testimony provided direct
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evidence of discrimination by the city, he was able to ask the
mayor directly about those topics. Indeed, in response to Neece's
questioning, the mayor confirmed that he knew that Neece's
testimony was unfavorable to the city, that Neece had recounted
Ryczek's concerns about hiring a woman, and that Neece had
documented his conversation with Moriarty and the human resources
director about the city's vulnerability to a gender-discrimination
lawsuit. Along similar lines, Neece elicited testimony from the
mayor that a $140,000 settlement was a "sizeable" expense for the
city. As the city notes, Neece could have followed up with leading
questions suggesting that the settlement was "unpalatable" but did
not do so.
In light of these multiple lines of inquiry by Neece
over several days of trial, the record simply does not support
Neece's position that it was the district court's relevancy rulings
that prohibited him from connecting the dots between the mayor and
the executive session. "To be sure, Federal Rule of Evidence 401's
standard for relevancy is low . . . ." Ward v. Schaefer, 91 F.4th
538, 544 (1st Cir. 2024). But even against this permissive
standard, the court did not abuse its discretion when it found
that the city council members' statements at the executive session
did not tend to make it more likely than it otherwise would be
that the mayor retaliated against Neece because of his role in the
Huber case.
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Next, we turn to the rest of the challenged evidentiary
rulings.
B. Evidence That Was Cumulative or Likely to
Waste Time or Confuse the Issues
The district court also excluded certain testimony from
Albano on the ground that it was cumulative and likely to waste
time and confuse the issues.
Federal Rule of Evidence 403 permits the district court
to "exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence." Fed. R. Evid. 403.
Thus, even if evidence helps inform disputed issues, the district
court "can find [its] 'untoward effects' . . . to be so weighty
that the evidence should be excluded." Galarneau v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 504 F.3d 189, 205 (1st Cir. 2007)
(quoting Faigin v. Kelly, 184 F.3d 67, 80 (1st Cir. 1999)).
In reviewing the district court's evidentiary rulings
under Rule 403, we keep in mind that "[t]he balancing act that the
rule demands 'is a quintessentially fact-sensitive enterprise, and
the trial judge is in the best position to make such fact[-]bound
assessments.'" Rathbun, 98 F.4th at 51 (first alteration in
original) (quoting United States v. Mare, 668 F.3d 35, 39 (1st
Cir. 2012)). Thus, we have declined, "from the vista of a cold
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appellate record, [to] reverse a district court's on-the-spot
judgment concerning the relative weighing of probative value and
unfair effect" absent "extraordinarily compelling circumstances."
Ward, 91 F.4th at 545 (quoting Freeman v. Package Mach. Co., 865
F.2d 1331, 1340 (1st Cir. 1988)). We see no such circumstances
here, given the way the trial played out.
We evaluate the district court's rulings in the order in
which they occurred at trial. First, during Moriarty's direct
examination, Neece sought to introduce a recording of Albano's
presentation to the city council. In particular, Neece wanted to
introduce Albano's recorded statements that his deposition
testimony and the $140,000 settlement were "unpalatable," the
Huber case was one of "the best employment discrimination cases"
Albano had seen because Neece provided Huber with "direct evidence
of discrimination," and, consequently, Neece was a "nightmare
witness[]" for the city. After Moriarty testified that he and
Albano had met with the city council to discuss the Huber
settlement at the mayor's direction, and that he had listened to
the recording of the meeting, Neece moved to admit the recording.
The court ruled that Neece had not established an adequate
foundation for doing so, especially when Neece already had been
allowed to question Moriarty about Albano's assessment of the Huber
case and demonstrate that Albano thought Huber had a strong claim.
The court then asked Neece why he needed to admit the recording of
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Albano's statements, and Neece responded that the city was "still
fighting the merits of the Huber case."
We see no abuse of discretion in the district court's
finding that Moriarty's testimony about Albano's specific
statements would have been cumulative and that excluding those
statements did not prejudice Neece. See Elwood v. Pina, 815 F.2d
173, 178 (1st Cir. 1987) (explaining district court may properly
exclude evidence when it is "repetitive" and the "small increment
of probability it adds may not warrant the time spent in
introducing it" (citation omitted)). As the court noted, Neece
needed to prove only that he had a reasonable belief that the city
had discriminated against Huber to establish his own retaliation
claims. Thus, Neece "[didn't] have to retry the Huber case here."
And, as the court observed, Moriarty had confirmed that (1) Albano
thought Huber's case was meritorious, and (2) Albano recommended
the city settle the case as a result. For that reason, as the
court explained, Neece already had the opportunity to rebut the
city's account that the Huber case lacked merit.
Second, during Albano's direct examination, Neece asked
Albano whether he (1) concluded that the evidence in the Huber
case was harmful to the city and (2) told the mayor that the
evidence was harmful. The district court sustained the city's
objections to those questions, finding that they were cumulative
and wasted time and noting that it was "losing track about what
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case [Neece was] trying to prove here."
In the context of Albano's overall testimony, this
ruling was within the district court's discretion. We "must
'evaluate the trial court's decision from its perspective when it
had to rule and not indulge in review by hindsight.'" United
States v. Varoudakis, 233 F.3d 113, 124 (1st Cir. 2000) (quoting
Old Chief v. United States, 519 U.S. 172, 183 n.6 (1997)). Even
if what Albano had told the mayor were relevant to the mayor's
motive, by the time the city lodged its objections, (1) Neece
already had established that Albano kept the mayor informed about
depositions in the Huber case, (2) Albano already had described
Neece's deposition testimony, and (3) it was obvious that Neece's
testimony undermined the city's defense. Indeed, in response to
a series of questions, Albano explained that it was Neece who
testified to Ryczek's statements expressing concern about hiring
a woman in the Central Maintenance Garage, asking what would happen
if a female employee became pregnant, and indicating fear of a
sexual-harassment suit if a woman were hired to work at the garage.
Albano also acknowledged that Neece documented Ryczek's
statements. Further, the court reasonably concluded that there
was a real potential for confusing the issues because the
proceeding risked becoming a mini-trial of the Huber case. See
Williams v. Drake, 146 F.3d 44, 48 (1st Cir. 1998) (finding no
abuse of discretion in excluding evidence when its "potential for
- 26 -
muddling the issues was real" and it "could well have created an
unwarranted sideshow, drawing attention from the main event").
We also see no harm from the district court's decision
to limit Albano's testimony. Immediately after its ruling, the
court itself asked Albano whether he told the mayor the names of
the people -- i.e., Neece -- who gave deposition testimony in the
Huber case; Albano indicated that he was not sure. What's more,
as we've outlined above, Neece was able to ask the mayor directly
whether the mayor knew that Neece's deposition undermined the
city's defense.
C. Attorney-Client Privilege
We now address Neece's final evidentiary claim. At
trial, the district court precluded the mayor's testimony about
the specific advice Albano gave him regarding the benefits of
settling the Huber case, finding that attorney-client privilege
protected those conversations. Neece contends that the district
court erred in determining both that a privilege between the mayor
and Albano existed and that the city had not waived the privilege.
We begin with the foundational legal principles.3
3 Federal Rule of Evidence 501 provides that federal common
law governs a claim of privilege, "[b]ut in a civil case, state
law governs privilege regarding a claim or defense for which state
law supplies the rule of decision." Fed. R. Evid. 501. Neece
seems to presume that, in this federal-question case in which the
district court exercised supplemental jurisdiction over his
Massachusetts-law retaliation claim, federal privilege law
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Attorney-client privilege "safeguard[s] communications between
attorney and client, but protects only those communications that
are confidential and are made for the purpose of seeking or
receiving legal advice." Blattman v. Scaramellino, 891 F.3d 1, 4
(1st Cir. 2018) (alteration in original) (internal quotation marks
omitted) (quoting Lluberes v. Uncommon Prods., LLC, 663 F.3d 6,
23-24 (1st Cir. 2011)). "That protection ceases, or is often said
to be 'waived,' when otherwise privileged communications are
disclosed to a third party," because "such disclosure 'destroys
the confidentiality upon which the privilege is premised.'"
Lluberes, 663 F.3d at 24 (citations omitted). The party that
invokes the privilege, here the city, bears the burden of showing
that (1) it applies, and (2) it has not been waived. Id.
Turning to the facts here: At trial, Neece sought to
prove the mayor's retaliatory motive by asking the mayor whether,
as part of Albano's recommendation on the Huber settlement, Albano
told him that Neece's testimony had been unfavorable to the city.
The city objected, stating that Albano's advice to the mayor on
the settlement was a privileged attorney-client communication.
The district court agreed, reasoning that Albano and the mayor
applies. The city does not directly challenge that presumption,
and neither party argues that federal and Massachusetts law differ
on the privilege issues presented here. So, we also apply federal
privilege law. See Lluberes v. Uncommon Prods., LLC, 663 F.3d 6,
23 (1st Cir. 2011) (applying federal privilege law when parties
implicitly indicated it controlled).
- 28 -
were "meeting privately for [the mayor] to be [given] information
that would affect his recommendation [to the city council] on
the . . . Huber settlement."
We conclude that the district court did not err in this
determination. "The objectives of the attorney-client privilege
apply to governmental clients." United States v. Jicarilla Apache
Nation, 564 U.S. 162, 169 (2011). In particular, "[t]he privilege
aids government entities and employees in obtaining legal advice
founded on a complete and accurate factual picture." Id. at 169-70
(quoting Restatement (Third) of the Law Governing Lawyers § 74
cmt. b (Am. L. Inst. 1998)). Thus, "[u]nless applicable law
provides otherwise, the Government may invoke the attorney-client
privilege in civil litigation to protect confidential
communications between Government officials and Government
attorneys." Id. at 170. The mayor certainly would be among the
city employees covered by the city's privilege because he was an
agent of the city (its chief executive) receiving advice from a
city attorney about why the city should settle a pending lawsuit
against it, all for the purpose of deciding whether to direct the
city council to consider the settlement. See In re Cnty. of Erie,
473 F.3d 413, 422-23 (2d Cir. 2007) (holding that attorney-client
privilege applied to emails sent from a county attorney to county
officials responsible for implementing correctional policies when
emails conveyed the attorney's assessment of and guidance on
- 29 -
complying with legal requirements); Restatement (Third) of the Law
Governing Lawyers §§ 73-74 (Am. L. Inst. 1998) (explaining that
attorney-client privilege generally extends to confidential
communications that occur between a government lawyer and
government employees and that are made for the purpose of
"establish[ing] and maintain[ing] legal positions").
But Neece argues that, for two reasons, the city waived
any privilege that would apply to the mayor's conversations with
Albano about the settlement. He claims that the district court
previously found that the city had intentionally waived any
privilege that attached to the discussions at the executive session
when the city allowed Moriarty and McAuliffe to testify about those
discussions in their depositions, and that this waiver extended to
Albano's conversations with the mayor. He also contends that
Federal Rule of Evidence 502, which governs waiver of privileged
communications, applies here.
The district court rejected these arguments, determining
that two distinct claims of privilege existed: first, a privilege
that attached to conversations among the city attorneys and city
council members at the executive session, and second, "a separate
attorney-client privilege between [the mayor] and Attorney Albano
regarding their private conversations." The court analyzed the
privilege claim for each set of conversations separately.
Neither the district court's rulings about the executive
- 30 -
session nor Rule 502 support a finding of waiver for the mayor's
conversations with Albano. As for its earlier orders determining
that the audio recording of the executive session was discoverable,
the district court found that the city waived the attorney-client
privilege that attached to the executive session "by allowing two
different witnesses to answer questions about the discussions
during the meeting," without "limitations as to the scope of
questions that could be posed to [them] about" that meeting. The
court's rulings did not address the private conversations between
Albano and the mayor, which occurred in advance of the executive
session and represent entirely separate communications.
Nor does Rule 502 apply to the circumstances here. That
rule provides that when a party waives attorney-client privilege
through a disclosure in a federal proceeding, "the waiver extends
to an undisclosed communication or information in [the same]
proceeding only if" three conditions are met: (1) "the waiver is
intentional"; (2) "the disclosed and undisclosed communications or
information concern the same subject matter"; and (3) "they ought
in fairness to be considered together." Fed. R. Evid. 502(a). We
have explained that the "subject-matter waiver" provided for in
the rule "is generally reserved for 'situations in which a party
intentionally puts protected information into the litigation in a
selective, misleading and unfair manner.'" Salmon v. Lang, 57
F.4th 296, 326-27 (1st Cir. 2022) (quoting Fed. R. Evid. 502(a)
- 31 -
advisory committee notes). "Such waivers are almost invariably
premised on fairness concerns." In re Keeper of Recs. (Grand Jury
Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 24 (1st Cir. 2003).
Those concerns arise when a party "partially disclose[s]
privileged communications or affirmatively rel[ies] on privileged
communications to support its claim or defense and then shield[s]
the underlying communications from scrutiny by the opposing
party." In re Grand Jury Proc., 219 F.3d 175, 182 (2d Cir. 2000).
We see no such fairness concerns or selective disclosure
here. The city insisted from the outset that the discussions at
the executive session, including any advice rendered by the city
attorneys, were neither discoverable nor admissible, and it did
not selectively disclose information helpful to its cause while
concealing other information that was unhelpful. We therefore
decline to disturb the district court's ruling.
D. Harm of the Evidentiary Rulings
We conclude by noting that, even if the district court
did abuse its discretion in any of its evidentiary rulings
(although we determine it did not), any error was harmless.
Neece's central argument is that he was prejudiced by the exclusion
of the verbatim statements from the executive session because "the
bland and summary questions that" witnesses had answered "had
nowhere near the force or the clarity of [the] actual words in the
meeting." But in reviewing the record as a whole, we cannot say
- 32 -
it is "highly probable" that the exclusion of those words
"affect[ed] the outcome of the case," McDonough, 452 F.3d at 19-20,
given both the evidence Neece did introduce and the evidence the
city put forth in support of its defense. As for Neece's evidence,
we've explained that witnesses, including the mayor, disclaimed
that city council members' calls for discipline were relayed to
the mayor. We therefore cannot say that the exclusion of those
statements impacted the verdict. As for Albano's comments on the
impact of Neece's testimony in the Huber case, Neece also put forth
evidence on this point. He was able to have both Albano and the
mayor confirm on the stand that, prior to recommending a
settlement, the mayor knew that Neece provided specific pieces of
evidence that were obviously detrimental to the city's defense,
and the mayor was concerned about taxpayer money funding a
settlement. Finally, through seven witnesses who had interacted
or worked directly with Neece, the city introduced substantial
evidence that countered Neece's version of why he lost his job,
which the jury could have credited to find that the mayor had a
legitimate, nonretaliatory reason for not renewing Neece's
contract: Neece's performance issues.
"Given the totality of the evidence," the particular
statements from the executive session, describing Neece as a
nightmare witness for the city and his testimony and the settlement
it prompted as unpalatable, "cannot reasonably be understood
- 33 -
as . . . [the] pivotal evidence that [could have] tipped the
verdict in favor" of Neece. Gay v. Stonebridge Life Ins. Co., 660
F.3d 58, 64 (1st Cir. 2011).
IV. CONCLUSION
For all these reasons, we affirm.
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Case Information
- Court
- 1st Cir.
- Decision Date
- June 27, 2024
- Status
- Precedential