No. 16-2265

JEANNETTE BUNTIN,

Plaintiff, Appellant,

v.

CITY OF BOSTON; JAMES MCGONAGLE; SCOTT ALTHER,

Defendants, Appellees.

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

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Selya, and Lynch, Circuit Judges.

W. Kendall and Law Office of W. Kendall on brief for appellant. Nicole M. O'Connor, Senior Assistant Corporation Counsel, City of Boston Law Department, and Eugene L. O'Flaherty, Corporation Counsel, on brief for appellees.

May 15, 2017 LYNCH, Circuit Judge. This 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.

I. A. Facts and Procedural History

In a 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

- 2 - remanded to the district court. Buntin v. City of Boston (Buntin I), 813 F.3d 401 (1st Cir. 2015).

We 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.

The 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,1 Alther and McGonagle testified falsely at hearings that Hixon had been under

1 Hixon himself filed charges with the Massachusetts Commission Against Discrimination on December 13, 2013 and on January 11, 2014. Each filing was dismissed as untimely. Buntin I, 813 F.3d at 404 & n.4.