FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]
Kendall and Law Office of W. Kendall on brief for appellant.
M. O'Connor, Senior Assistant Corporation Counsel, City
of Boston Law Department, and Eugene L. O'Flaherty,
Corporation Counsel, on brief for appellees.
Torruella, Selya, and Lynch, Circuit Judges.
appeal causes us to decide a question of first impression in
this circuit. We hold that a plaintiff may not bring claims
for damages under 42 U.S.C. § 1981 against state actors,
including defendants sued in their official capacities as
government officials -- here, employees of the City of
Boston. This result is required by Jett v.
Dallas Independent School District, in which the
Supreme Court held that § 1981 does not provide an
implied private right of action for damages against such
officials and that "the express cause of action for
damages created by [42 U.S.C.] § 1983 constitutes the
exclusive federal remedy for violation of the rights
guaranteed in § 1981 by state governmental units."
491 U.S. 701, 733 (1989). Congress has not, in the nearly
three decades since Jett, demonstrated any intention
to compel a different result. Our holding brings us into
agreement with eight other circuits, and into disagreement
with only one. We affirm the district court's dismissal
of the action.
Facts and Procedural History
prior appeal in this case, we affirmed dismissal of the
complaint's § 1983 claims on statute of limitations
grounds. The dismissal of those § 1983 claims provides
pertinent background. We also found error in the dismissal of
the § 1981 claims on the sole ground of failure to
exhaust administrative remedies, and we remanded to the
district court. Buntin v. City of
Boston (Buntin I), 813 F.3d 401 (1st Cir.
repeat only the essential facts here; our earlier decision
provides a more complete description. See id. at
403- 04. The plaintiff, Jeannette Buntin, represents the
estate of her late father Oswald Hixon, a black man, and sued
in state court on February 6, 2015. The case was later
removed to federal court. Hixon was employed by the City of
Boston as a repairman in the Department of Public Works
("DPW") and was supervised by defendants Scott
Alther and James McGonagle, both of whom are white men. In
2007, Hixon was suspended for twenty days without pay, after
failing a random drug and alcohol test. Hixon was fired on
February 10, 2011. The reason given was his second violation
of the City's drug and alcohol policy.
complaint alleges that this stated ground for termination was
a pretext for racial discrimination and retaliation against
Hixon for protesting past discriminatory treatment at work.
It also alleges that in January 2013, after Hixon applied for
state unemployment benefits,  Alther and McGonagle testified
falsely at hearings that Hixon had been under the influence
of drugs or alcohol at work and had refused to take a
required drug and alcohol test. Hixon died in
District Court Proceedings on Remand
remand from this court, the parties engaged in discovery with
respect to Buntin's § 1981 damages claims -- which
were all that remained of the lawsuit after Buntin I
-- and then filed cross-motions for summary judgment.
September 19, 2016, the district court granted summary
judgment to the defendants. Buntin v.
City of Boston, 209 F.Supp.3d 368 (D. Mass. 2016).
The court applied Jett, reviewed post-Jett
legislation, held that § 1981 provides no implied
private right of action for damages against state actors,
id. at 369-71, dismissed the federal claims, and
remanded the remaining state law claims to state court,
id. at 371.
begin by clearing away a threshold argument made by Buntin.
Although Buntin admits that Buntin I did not
explicitly address the question at hand, she argues that
Buntin I, by holding that the complaint's
factual allegations "plausibly suggest that Buntin is
entitled to relief on a [§] 1981 claim, " 813 F.3d
at 406, necessarily also made an implicit holding
that § 1981 provides an implied private right of action