In DiFronzo v. City of Somerville, No. 25-1210 (1st Cir. Sept. 21, 2026), the First Circuit reverses in part a judgment in favor of the plaintiff in a First Amendment retaliation case, holding that one of the plaintiff’s theories at trial—that he was placed on forced leave after being reinstated—was neither pled nor consented to by the defendant. The panel considers the standards for when an issue is tried by implied consent under Rule 15(b)(2).
Plaintiff, “a City of Somerville, Massachusetts, police officer, was terminated from his public employment for alleged on-duty misconduct.” The plaintiff alleged that the termination was orchestrated by city government officials on account of his whistleblowing against the mayor, supposedly for interfering with a criminal investigation.
“DiFronzo fought the termination on two fronts. He sued [the mayor and other defendants] claiming, inter alia, that they terminated his employment in retaliation for his exercise of constitutional rights, 42 U.S.C. § 1983, and interfered with his advantageous relations with the City of Somerville in violation of Massachusetts law. He also challenged the termination via an arbitration proceeding commenced under the City’s collective bargaining agreement with the police union of which DiFronzo was a member.”
Plaintiff prevailed in the arbitration and won reinstatement. The mayor allegedly countered by placing plaintiff on paid administrative leave. Critically for this appeal, “DiFronzo never sought to amend his [federal] complaint to allege liability based on [the mayor]’s decision to place him on paid leave but nevertheless was permitted to present evidence at trial about the paid-leave decision as a basis for damages.”
During the jury instruction conference, “the defendants noted that DiFronzo ‘never amended’ [the pleadings] to say that the decision to place him on paid leave after the arbitration decision was unlawful, and they therefore argued that the jury could not award damages for that decision because ‘it’s a different case.’”
Notwithstanding, the district court allowed the “paid leave” issue to go to the jury, though (cannily) the judge directed “the jury to specify any damages it was awarding for [the mayor’s] paid-leave decision so that if ‘an appellate court concludes that it was wrong to have anything after July 2021[,] [the date of the paid-leave decision], we will have a record of what the jury’s verdict was.’”
“The jury returned a verdict that was largely in DiFronzo’s favor. It found the defendants liable for First Amendment retaliation and tortious interference with advantageous relations claims. For conduct occurring before July 2021, the jury awarded no lost compensation damages and $300,000 in emotional distress damages. For conduct occurring after the paid-leave decision, it also awarded $200,000 in lost compensation damages and $300,000 in emotional distress damages against [the mayor].”
On appeal, the panel affirms the verdict for the pre-July 2021 conduct but reverses the award for the paid leave claim. (Some of the opinion – not further addressed here – concerns the admission of evidence about the arbitration award at trial, which the defendant challenged under Fed. R. Evid. 403 but the panel upholds.)
Whether the claim was preserved, the panel observes, requires consideration of Fed. R. Civ. P. 8 and 15(b).
First, the panel holds that the paid-leave claim was not within the ambit of the complaint under Rule 8, even though the pleading referred to harm that “continues to this day,” which plaintiff argued included the paid-leave violation after reinstatement.
“Fairly read,” though, “DiFronzo’s pleading refers to continuing damages arising from the termination decision and the media coverage of that decision. When DiFronzo filed his pleading, he was still unpaid because of the termination decision and suffered continuing financial harm from that decision. And the alleged ongoing harm to his reputation was caused by statements that [the mayor] made to the press in relation to the termination decision. Thus, the complaint’s reference to damages ‘continu[ing] to this day’ refers to harm arising from the termination decision, not the separate paid-leave decision.”
Having failed to allege the paid-leave claim in the complaint, or to amend the pleading to include it before trial, the only remaining reed for preserving the claim and the verdict was Rule 15(b)(2), which allows a judge to “amend the pleadings to conform them to the evidence and to raise an unpleaded issue.” But here, the predicate is that the “issue not raised by the pleadings is tried by the parties’ express or implied consent.”
An “issue” under Rule 15(b), the panel holds, is a dispute of a factual nature and something less than an entire claim. “Rule 15(b) applies to an unpleaded ‘issue.’ Fed. R. Civ. P. 15(b). In legal parlance, an ‘issue’ is a ‘point in dispute between two or more parties’ . . . . Thus, consistent with its plain meaning, ‘issue’ as used in the Federal Rules of Civil Procedure operates below the level of a claim, defense, crossclaim, counterclaim, or third-party claim. It refers to the constituent parts of a claim or defense, including central points of factual dispute.”
Thus, “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. That is what DiFronzo did here. His complaint alleges claims of retaliation for the exercise of constitutional rights and interference with advantageous relations based only on the termination decision; he therefore had to comply with Rule 15(b) to try his case based on the unpleaded paid-leave decision.”
Because the defendants did not expressly consent to trying the paid-leave claim, the only other prospect for plaintiff to preserve the verdict under Rule 15(b) was implied consent. Yet the record was peppered with defendants’ objections to the paid-leave claim.
Plaintiff argued, all the same, that it was defendants who introduced evidence of the plaintiff’s paid leave at trial, thus opening the door to trying the claim. But the panel concludes that “the paid-leave evidence was relevant for the jury to assess motive as it related to the allegation of unlawful termination. The defendants were not consenting to consideration of the paid-leave decision as a separate basis for liability by asking [the mayor] about his reasons for placing DiFronzo on paid leave. Accordingly, the defendants did not expressly or impliedly consent to trying the paid-leave issue as a basis for damages.”
“To summarize, the district court correctly observed that ‘new developments, or new facts relevant to claims alleged in an original complaint, are routinely adduced through discovery and trial testimony.’ But when those new developments or facts inject an unpleaded ‘issue’ into a trial, as they did here, the party relying on the unpleaded issue must satisfy Rule 15(b). Because the defendants did not consent to the unpleaded issue being tried, and DiFronzo did not seek leave to amend his complaint when the defendants objected, DiFronzo failed to satisfy Rule 15(b)’s requirements for presenting an unpleaded issue to the jury. Therefore, the district court erred in permitting the jury to award damages based on the unpleaded paid-leave decision.”
Because the district court directed the jury to enter a bifurcated verdict, though, the panel was able to reverse the paid-leave verdict while preserving the verdict based on the termination.
