Background
Somerville police detective Dante DiFronzo was disciplined and ultimately terminated in 2018 after an investigation into his communications with an informant who later attacked a burglary suspect. DiFronzo alleged that city officials retaliated against him for protected speech criticizing Police Department practices and interfered with his advantageous employment relationship with the City.
DiFronzo filed suit in 2021 while arbitration under the police union’s collective-bargaining agreement was pending. The arbitrator later ordered him reinstated but denied back pay. After a second Brady letter issued, Mayor Joseph Curtatone directed that DiFronzo be placed on paid administrative leave, which limited his overtime and other compensation opportunities. DiFronzo never supplemented or amended his complaint to challenge that later decision.
The Court’s Holding
The First Circuit held that the district court erred by allowing the jury to award damages based on Curtatone’s 2021 paid-leave decision. The original complaint alleged retaliation and tortious interference based on the termination, not the separate post-arbitration decision to place DiFronzo on paid leave.
Rule 15(b) applied because the paid-leave decision supplied an unpleaded factual basis for liability. The defendants repeatedly objected and did not expressly or impliedly consent to trying that issue, while DiFronzo never moved to amend or supplement his pleading. The court therefore reversed the $200,000 lost-compensation award and $300,000 emotional-distress award tied to conduct after July 2021, and remanded. It otherwise upheld the admission of the arbitrator’s reinstatement-without-back-pay ruling for the limited purpose of explaining damages.
Key Takeaways
- A new factual predicate for liability may be an unpleaded “issue” under Rule 15(b), even when the legal claims remain the same.
- Evidence of a later event does not establish implied consent where it is also relevant to a pleaded issue and the opposing party repeatedly objects.
- An arbitration award may be admitted to explain damages without being used as substantive proof of liability, particularly with an appropriate limiting instruction.
Why It Matters
The decision underscores that plaintiffs seeking relief for post-complaint employment actions should use Rule 15(d) or seek amendment when defendants object. Notice pleading is flexible, but it does not permit damages based on a distinct, unpleaded employment decision without compliance with Rule 15(b).