Labor & Employment Law Daily Wrap Up, PROCEDURE—1st Cir.: Police officer, placed on leave after reinstatement, failed to preserve that issue, (Sep 22, 2026)

By Jason Albright, J.D.

“[A]bsent consent, a party may not try unpleaded issues without amending the complaint.”

A police officer for the City of Somerville, Massachusetts, fired and later reinstated by an arbitrator but then placed on paid administrative leave by the mayor, failed to preserve the paid leave issue, for purpose of damages calculations, by conforming his pleadings to evidence presented at trial in his Section 1983 lawsuit against three city officials, the First Circuit found. Reversing a federal district court’s judgment as to amounts awarded as lost compensation and emotional distress damages occurring after the officer was placed on leave, the appeals court found that Rule 15(b) applies when a party does not change the legal nature of his claim but offers a different factual predicate for the claim, the defendants did not consent to the unpleaded issue being tried, the officer did not seek leave to amend his complaint when the defendants objected, and he thus failed to satisfy Rule 15(b)'s requirements for presenting an unpleaded issue to the jury (DiFronzo v.City of Somerville, No. 25-1210 (1st Cir. Sept. 21, 2026)).

Fired police officer. The plaintiff, a police officer for the City of Somerville, was fired for alleged on-duty misconduct while investigating a burglary, during which he failed to disclose his involvement with an informant, whom he arrested for assaulting the suspect with a machete.

Discharge challenged. He fought his termination on two fronts, according to the court. He sued the Somerville mayor, police chief, and police captain, claiming, among other things, that they fired him in retaliation for his exercise of his First Amendment rights and interfered with his advantageous relations with the city in violation of Massachusetts law. The First Amendment claim hinged on letters he wrote to the mayor complaining about certain police department practices he thought “should be brought to the attention of an outside public body,” including the department’s treatment of another officer who was spared discipline, allegedly because he was “personally close” to the mayor.

The fired officer also challenged his termination via an arbitration proceeding under the city’s collective bargaining agreement with the police union of which he was a member.

Reinstatement by arbitrator. While his case proceeded in federal court, the arbitrator ordered his reinstatement, determining that there was no just cause for his termination.

Placed on paid administrative leave. The mayor, however, responded by placing the officer on paid administrative leave.

Never amended complaint. The officer never sought to amend his complaint to allege liability based on the mayor’s decision to place him on paid leave. He was, however, permitted to present evidence at trial about the paid-leave decision as a basis for damages.

Defendants consistently objected. The mayor, police chief, and police captain consistently objected that the paid-leave issue could not be a basis for damages because it was not alleged in the officer’s complaint.

Verdict. The district court, however, permitted the jury to consider the paid-leave decision for that purpose, and the jury returned a verdict that was largely in the officer’s favor. It found the defendants liable for First Amendment retaliation and tortious interference. For conduct occurring before the officer’s July 2021 placement on leave, the jury awarded no lost compensation damages and $300,000 in emotional distress damages. For conduct occurring after the paid-leave decision, it awarded $200,000 in lost compensation and $300,000 in emotional distress damages against the mayor.

Motion for new trial denied. The defendants then moved for a new trial, renewing the contention that it was improper to award damages based on the mayor’s paid-leave decision because the officer “fail[ed] to amend his pleadings to include allegations” about post-arbitration events.

The district court denied the motion and rejected the argument, and the defendants appealed to the First Circuit.

Rule 15(b). Reversing and remanding, insofar as the district court’s judgment awarded the officer damages based on the mayor’s decision to place him on paid leave, the appeals court observed that Fed. R. Civ. P. 15(d) permits a court to allow a supplemental pleading “setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented,” and that the officer thus could have covered the pleading gap in the case by obtaining the district court's permission to serve a supplemental pleading setting forth the post-arbitration events, including the paid-leave decision.

“Choosing not to do so was not necessarily fatal,” noted the appeals court. It meant, however, that for the officer to have properly litigated the paid-leave issue at trial, he had to comply with Rule 15(b), which applies to an unpleaded “issue,” specifically when a party does not change the legal nature of his claim but offers a different factual predicate for the claim.

The appeals court found that that is what the officer did here. His complaint alleged claims of retaliation for the exercise of constitutional rights and interference with advantageous relations based only on the termination decision, rather than the later decision to place him on paid leave following his reinstatement.

Prejudice to defendants. Applying Rule 15(b), the First Circuit found that there was prejudice to the defendants. Their objections demonstrated that they were trying the case based only on the termination decision, they did not consent to the additional unpleaded issue being tried, and the officer did not seek leave to amend his complaint when they objected. He thus failed to satisfy Rule 15(b)'s requirements for presenting an unpleaded issue to the jury, and the district court erred in permitting the jury to award damages based on the paid-leave decision.

New trial unnecessary. Finally, however, the First Circuit rejected the defendants’ argument that, because of the “cumulative errors,” the district court should have granted a new trial. Here, the appeals court noted that there was only one error: allowing the jury to award damages based on the paid-leave decision, and the district court had asked the jury to award separate damages as to the termination decision, on one hand, and paid-leave decision, on another. Finally, the defendants failed to present an argument that allowing the jury to consider the paid-leave decision somehow could have “infected” its decision to award emotional distress damages as to the termination decision.

The case is No. 25-1210.

Judge: Aframe, S.

Attorneys: Peter A. Brown (Law Offices of Peter A. Brown) for Dante A. DiFronzo. Michael V. Glennon (Brody Hardoon Perkins & Kesten) for City of Somerville.

Companies: City of Somerville

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