Wagner v. Devine

United States Court of Appeals
For the First Circuit

No. 96-2315

ROBERT WAGNER AND MARGARET WAGNER,

Plaintiffs, Appellants,

v.

PATRICIA DEVINE, KEVIN A. JOURDAIN, CHARLES E. MORAN, III,
ARTHUR THERRIEN, JOHN E. WHELIHAN, THE CITY OF HOLYOKE,
MASSACHUSETTS, THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS,
LOCAL 388, AND THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Stewart T. Graham, Jr., for appellants.

John H. Fitz-Gibbon with whom Harry L. Miles was on brief for

appellees Devine, Jourdain, Moran, Whelihan and the City of Holyoke,
Massachusetts.
Lawrence D. Humphrey for appellees Therrien, International

Brotherhood of Police Officers, Local 388, and the International
Brotherhood of Police Officers.

August 1, 1997

COFFIN, Senior Circuit Judge. Appellant Robert Wagner,

former chief of police in Holyoke, Massachusetts, claims that his

First Amendment freedom of political association was violated

when members of the city council and others subjected him to

severe harassment, ultimately forcing him to resign, because of

his political support for the city's mayor. He filed this

lawsuit alleging federal constitutional and state law claims.1

The district court dismissed the First Amendment counts for

failure to state a claim, and declined supplemental jurisdiction

over the state law counts. Because the First Amendment does not

protect a policymaking official such as appellant from criticism

and harassment, we affirm.

I. Factual Background2

Appellant Wagner was appointed Holyoke's chief of police in

July 1991 by then newly elected Mayor Hamilton. Wagner asserts

that four members of the City Council who were Hamilton's

1 The complaint included a count for loss of consortium on
behalf of Wagner's wife, Margaret Wagner. Because this claim
survives or fails with Robert Wagner's state claims, we do not
address it separately.

2 We note that the facts alleged in Wagner's complaint
provide a much sketchier picture of the defendants' alleged
conduct than the facts described by counsel at the hearing on
defendants' motion to dismiss. In reviewing a Rule 12(b)(6)
dismissal, we typically consider the "well-pleaded facts as they
appear in the complaint," see Correa-Martinez v. Arrillaga-

Belendez, 903 F.2d 49, 51 (1st Cir. 1990) (emphasis added).

Because we ultimately uphold the dismissal, and the additional
facts are helpful in understanding the case, we draw the facts in
this section from both the complaint and the hearing. For
purposes of the motion to dismiss, we take the allegations as
true and grant all reasonable inferences in Wagner's favor.
Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).

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political opponents engaged in a campaign of harassment against

him for the purpose of embarrassing the mayor and forcing

appellant to resign. He contends that their criticisms of his

job performance were unfair and inaccurate, and that their

actions were motivated solely by their opposition to his

political beliefs and his political support of the mayor.3 He

further asserts that the president of the police union, and

through him the local and international unions, conspired with

the council members to effectuate the plan to oust him.

The complaint accuses the council members of harassing him

by means of unspecified "actions," and numerous false and

defamatory statements. At the hearing on the motion to dismiss,

appellant's counsel identified the challenged actions as follows:

They were constantly criticizing him. They had
subcommittees that they were chairing and they had him
up to see the council constantly, criticizing him in
everything he did . . . . They tried to eliminate his
salary. They reduced his salary. They reduced his
benefits. They refused to fund programs that he was
pushing.

Although the mayor has sole authority under the city charter to

hire or fire the police chief, the council has power to set the

salary and benefits for the position. According to Wagner, the

four defendant council members, aminority of the governing body,

3 In his appellate briefs, Wagner makes several passing
references to a First Amendment violation based on his political
speech, as well as on political affiliation, and he cites several
speech cases in support of his arguments. The complaint, the
hearing on the motion to dismiss, and the district court's
opinion all reveal that this case has been litigated solely on
the theory that defendants harassed and constructively discharged
him based on his political beliefs and affiliation. Our analysis
is therefore confined to that context.

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"led the charge" against him and secured the complicity of enough

other councilors to accomplish their unlawful objectives.

Wagner resigned in September 1994. He asserts that he was

forced to do so because the defendants' actions and statements

hindered, undermined, and interfered with the performance of his

duties, and thus constituted a constructive discharge.4

This lawsuit followed. In addition to federal civil rights

claims under 42 U.S.C. 1983, which assert violation of his

First Amendment right to political association, Wagner alleged a

state civil rights violation, and state law claims of defamation,

tortious interference with contractual relations, and, in his

wife's name, loss of consortium. In response to the defendants'

motion to dismiss under Fed. R. Civ. P. 12(b)(6), the district

court substantively addressed only the section 1983 count. It

ruled that "the alleged harassment which Wagner sustained at the

4 Defendants contend that they cannot be found liable for a
constructive discharge because only the mayor had the authority
to fire Wagner. Their argument cuts too narrowly. Although the
city council may not have had explicit authority to terminate the
police chief, its authority to set salary, benefits and working
conditions gave it the power to accomplish a constructive
discharge. See, e.g., Vega v. Kodak Caribbean, Ltd., 3 F.3d 476,

480 (1st Cir. 1993) (constructive discharge occurs when "working
conditions [are] so intolerable[] that a reasonable person would
feel compelled to forsake his job rather than to submit to
looming indignities"); Aviles-Martinez v. Monroig, 963 F.2d 2, 6

(1st Cir. 1992) (similar). Of course, a minority of the council

does not have such power, and a finding of constructive discharge
would require some showing that the challenged conduct actually
was attributable to the alleged discrimination. See generally

Scott-Harris v. City of Fall River, Nos. 95-1950-1952, 95-2100,

1997 WL 9102, at *9-10 (1st Cir. Jan. 15, 1997), cert. granted

sub nom Bogan v. Scott-Harris, 65 U.S.L.W. 3809 (U.S. June 10,

1997) (No. 96-1569). In any event, as we conclude infra, such a

discharge would not be actionable if, as here, the affected
employee was a policymaker.

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hands of a minority of the city councilors and a subordinate

police officer was not of sufficient degree to constitute 'a

constitutionally significant burden on [Wagner's] political

association right.'" Memorandum and Order at 5 (quoting Agosto-

de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1216 (1st Cir. 1989)

(en banc)).

The court also concluded that, even if the harassment had

been sufficiently severe to implicate constitutional concerns,

Wagner's First Amendment claim still would fail because the

police chief's position was one for which political affiliation

is an appropriate requirement. Public employees who hold such

positions, the court ruled, are not protected by the First

Amendment from partisan attacks on their job performance. Having

dismissed the federal claims, the court declined to exercise

supplemental jurisdiction over the remaining state law causes of

action and dismissed them as well.

The Wagners then filed this appeal. Our review of the

district court's Rule 12(b)(6) dismissal is de novo. Romero-

Barcelo v. Hernandez-Agosto, 75 F.3d 23, 28 n.2 (1st Cir. 1996).

We may affirm a dismissal for failure to state a claim only if it

clearly appears that, on the facts alleged, the plaintiff cannot

recover on any viable theory. Correa-Martinez v. Arrillaga-

Belendez, 903 F.2d 49, 52 (1st Cir. 1990). Because the district

court's ruling that the First Amendment does not protect Wagner

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from politically motivated discrimination is both correct and

dispositive, we turn to that issue first.5

II. Discussion

The Supreme Court more than twenty years ago established

that the First Amendment provides protection for public employees

from adverse job action based solely on partisan political

affiliation. See Elrod v. Burns, 427 U.S. 347 (1976) (plurality

opinion); Branti v. Finkel, 445 U.S. 507 (1980); Rutan v.

Republican Party, 497 U.S. 62 (1990).6 The protection is not

universal, however. In its precedent-setting case examining the

constitutionality of the patronage system, the Court recognized

the competing First Amendment interest of the in-power political

party "to insure that policies which the electorate has

sanctioned are effectively implemented," Elrod, 427 U.S. at 372.

The Court therefore allowed patronage practices to continue for

those employees who, inter alia, make policy or occupy positions

of confidence. Id.; Branti, 445 U.S. at 517-18.7

5 Wagner contends that the district court's other holding,
that the harassment he suffered was not constitutionally
significant, was based on a misreading of the complaint. We need
not, and therefore do not, take up this issue.

6 The Supreme Court addressed politically motivated
discharges in Elrod and Branti, extending its reasoning to other

forms of employment discrimination in Rutan.

7 At various points in this opinion, we use the term
"policymaker" as a shorthand reference for the several categories
of employees for whom partisan affiliation is an appropriate job
criterion. Such employees are "'involved in policymaking, the
communication of political ideas, or sensitive tasks connected
with the policymaking function,' Vazquez Rios v. Hernandez Colon,

819 F.2d 319, 322 (1st Cir. 1987), []or 'occupy[] positions of .
. . unusually intimate propinquity to government leaders,' id. at

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Our circuit has since faced a long line of cases raising the

issue of political discrimination in employment, most of which

have focused on whether the particular position held by the

plaintiff employee fell inside or outside the First Amendment-

protected sphere. See, e.g., Agosto-de-Feliciano, 889 F.2d at

1212 & n.1, 1218 (noting "first wave" of cases involving outright

dismissals, and adopting standard for evaluating "second wave"

cases involving discriminatory conduct falling short of

discharge). This case presents an interesting departure from the

norm. Both parties accept that Wagner's job as police chief

sufficiently elevated him in the Holyoke hierarchy that, under

the principles we have just outlined, he could be fired based on

political affiliation.

Wagner, however, contends that he was subjected to an

impermissible constructive discharge because only the mayor --

the official who hired him and for whom he served as a

policymaker -- may fire him based on political affiliation

without violating the First Amendment. This is so, he maintains,

because the Elrod-Branti exception was designed to ensure that

the policies of a new administration -- "policies presumably

sanctioned by the electorate," Elrod, 427 U.S. at 367 -- would

not be undercut by the obstructive tactics of opposition

incumbents. This rationale provides no justification for

opponents of a new administration -- such as the defendants here

324." Correa-Martinez, 903 F.2d at 56 n.6.

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-- to harass the administration's supporters. Their conduct,

Wagner argues, is therefore unconstitutional.

Wagner's analysis ignores the reality of precedent. Both

Supreme Court and First Circuit caselaw have recognized the

applicability of the Elrod-Branti dichotomy outside the context

of a new administration's patronage practices. The conflict in

Rutan, where the Supreme Court held that the First Amendment

forbids government officials from basing less-than-discharge

actions such as hiring, promotion, and transfer on political

affiliation and support, did not arise amidst the seating of a

new administration. At issue was the implementation of an

executive order proclaiming a hiring freeze, with "exceptions"

allegedly made based on political affiliation. In referring back

to Elrod and Branti in the opinion's opening paragraph, the

majority broadly described those cases as protecting public

employees from discharge "solely for not being supporters of the

political party in power, unless party affiliation is an

appropriate requirement for the position involved," 497 U.S. at

64. That decision indicates that the First Amendment protection

against patronage practices, as well as the exceptions for

certain categories of highly placed employees, apply whenever

public employees are at odds politically with their superiors and

thus subject to politically discriminatory behaviors.

Our decision in Romero-Barcelo, 75 F.3d at 33-34, brings us

even closer to the present context. In rejecting a former Puerto

Rico governor's allegations that he had suffered severe political

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discrimination during a murder investigation because of his

association with the out-of-power New Progressive Party (NPP), we

stated:

The Supreme Court has held that the First Amendment
"protects nonpolicymakers from being drummed out of
public service on the basis of their political
affiliation or advocacy of ideas." . . . But Romero-
Barcelo most assuredly qualified as an NPP policymaker.
. . . Thus, the district court correctly found no First
Amendment protection for "a politician whose rights to
freedom of speech, freedom of association, and freedom
'to disassociate [oneself] from unpopular views' have
been injured by other politicians seeking to undermine
his credibility within his own party and with the
electorate."

75 F.3d at 34 (citations omitted). Cf. Larou v. Ridlon, 98 F.3d

659, 661 (1st Cir. 1996) (noting as a general principle that

"[t]he First Amendment protects nonpolicymaking public employees

from discrimination based on their political beliefs or

affiliation"); Correa-Martinez, 903 F.2d at 56-57 & n.6 (same).

Our conclusion in Romero-Barcelo stemmed from a recognition

that an administration's need to assure that it can implement the

people's will is matched by the equally legitimate right of

political opponents to exert pressure on behalf of their

viewpoints and constituents. Indeed, like the mayor, the

minority members of the Holyoke City Council represented a

portion of the electorate, and they therefore share the rationale

that they were pursuing objectives sanctioned by the voters who

supported them. The democratic process envisions a give-and-take

in matters of policy, and the unfortunate fact that some

individuals will be caught in the crossfire is "an all too real

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by-product of our long-standing organization of political life

into two or more parties," Agosto-de-Feliciano, 889 F.2d at 1217.

The Elrod-Branti line of cases struck a balance between the

competing First Amendment interests by excluding policymaking

public employees from constitutional protection. See, e.g., id.

at 1215 (quoting Elrod to the effect that "there are First

Amendment interests on both sides"); Pieczynski v. Duffy, 875

F.2d 1331, 1334 (7th Cir. 1989) (noting "the balance").

Policymakers, as front-line representatives of the policies they

were hired to implement, can be expected to face stinging

partisan attacks against their efforts by outsiders seeking to

persuade the electorate (and fellow legislators) to make them the

insiders. Wagner was in a particularly vulnerable position

because of the division of power over his job between the mayor

and city council, both of whom possessed municipal authority --

albeit in different ways -- to terminate his employment. At

least when the political pressure exerted by those in power is

within their authority,8 the First Amendment does not provide a

shield for those whose positions are politically sensitive.

We add this comment about appellant's particular

circumstances. Were appellant's argument to be accepted -- i.e.,

that harassment and criticism by political opponents rising to

the level of a constructive discharge constituted a First

Amendment violation -- we quail at the prospect of judges and

8 There is no allegation, for example, that the city council
lacked authority to reduce, or even eliminate, the police chief's
salary, or that improper procedures were followed.

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juries being inundated by claims of unhappy politicians that

their opponents had transgressed the boundary between

constitutional and unconstitutional fair play. Partisan politics

does not, we fear, lend itself to the rulemaking authority of a

Marquess of Queensberry.

We therefore conclude that, because there is no dispute that

appellant Wagner's position as police chief was a policymaking

one, the district court properly held that he had no First

Amendment right to be free from discriminatory treatment based on

his politics. This conclusion makes it unnecessary to consider

the other issues surrounding his First Amendment claims,

including the adequacy of his allegations, the scope of

legislative immunity, and whether the allegedly improper motives

of a four-member minority of a fifteen-member city council

provide a basis for municipal liability. In these circumstances,

dismissal of the state law claims also is appropriate. See

McIntosh v. Antonino, 71 F.3d 29, 33 n. 3 (1st Cir. 1995).

The judgment of the district court is affirmed.

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