United States Court of Appeals
For the First Circuit
No. 06-2630
THOMAS WILSON; DONALD P. TWOHIG;
DONALD D. TWOHIG; THOMAS SHANNAHAN,
Plaintiffs, Appellants,
v.
CHARLES D. MOREAU, individually and as Agent for the City of
Central Falls; JOHN KUZMISKI, in his capacity as Finance Director
and Treasurer of the City of Central Falls; RICHARD B. BESSETTE,
individually and in his capacity as Agent for the City of Central
Falls; MARTIN JOYCE, individually and as Acting Personnel
Specialist for the City of Central Falls; RAYMOND COONEY,
individually and in his capacity as City Solicitor for the City
of Central Falls; ALBERTO CARDONA, individually and in his
capacity as Agent for the City of Central Falls; KEVIN GUINDON,
individually and in his official capacity as a Police Officer for
the City of Central Falls; MARK BRAYALL, individually and in his
official capacity as Police Officer for the City of Central
Falls,
Defendants, Appellees.
__________
ROBERT LUKE, individually and in his capacity as an employee of
IT Systems, LTD; IT SYSTEMS LTD., a Rhode Island Corporation,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Howard, Circuit Judge,
and Saylor,* District Judge.
Leon A. Blais with whom Blais and Parent was on brief for
appellants.
Marc DeSisto with whom DeSisto Law, Elizabeth McDonough Noonan
and Adler Pollock & Sheehan, P.C. were on brief for appellees.
June 29, 2007
*
Of the District of Massachusetts, sitting by designation.
BOUDIN, Chief Judge. In the district court, the
plaintiffs--all former employees or contractors of the City of
Central Falls, Rhode Island--made claims relating to their
employment with the city. Thomas Wilson was the Police Chief,
Thomas Shannahan was the Director of the Library, Donald D. Twohig
("Donald D.") was the Systems Administrator of the Library, and
Donald P. Twohig ("Donald P."--Donald D.'s father) was an
independent contractor who worked on library projects for over ten
years.
Judge Lagueux's opinion on summary judgment contains a
detailed description of the facts. Wilson v. Moreau, 440 F. Supp.
2d 81 (D.R.I. 2006). Pertinently, Charles Moreau was elected mayor
in November 2003. The mayor had earlier stated that, if elected,
he would fire Wilson. Once elected, the mayor embarrassed Wilson
on several occasions, including, for example, requiring Wilson to
turn in his city-owned vehicle and accept an old, rusted car as a
replacement. Wilson was suspended with pay and eventually resigned
after refusing to pursue an investigation into alleged misuse of
library resources.
During the election, Donald P. donated $100 to Moreau's
opponent and put up lawn signs. Shannahan had been approached by
Moreau prior to the election, but declined to support either
candidate for mayor. Allegedly in response to perceived support
-3-
for his opponent on the part of library staff, the new mayor began
an investigation into the operations of the library.
During this period, payment due to Donald P. for
renovation work already completed was delayed for seven weeks. The
mayor also required competitive bidding for all work over $500,
which effectively cut off Donald P.'s access to non-bid work.
Shannahan announced his resignation on April 12, 2004, effective at
the end of April. Donald D. was initially demoted by an interim
librarian and later suspended and fired by the newly appointed
library director; he filed a grievance, which was upheld, but he
appears to have found employment elsewhere.
On April 20, 2004, police detectives and a computer
technician went to the library, obtained Donald D.'s password to
the internal library system and looked through the library's
computer files. The "raid," at Mayor Moreau's direction, was to
determine whether library resources had been used to support his
opponent during the election. According to Donald P., he was
ordered to provide the password to his personal Yahoo account, and
his personal emails were then searched.
The plaintiffs then filed a lawsuit in federal court
against the mayor, members of his administration, the two police
detectives involved in the search, and the computer technician and
his company who aided the search. Most of the claims were
dismissed on summary judgment, but several went to trial; of these,
-4-
several were thereafter dismissed on a Rule 50(a) motion, Fed. R.
Civ. P. 50(a); two remaining claims went to the jury, which
rejected them on the merits.
On plaintiffs' appeal to this court, we rely primarily
on Judge Lagueux's thoughtful and thorough opinion, addressing only
those issues that have been preserved. Dismissals on summary
judgment and under Rule 50 are reviewed de novo, taking the
evidence most favorably to the opposing party; in the former case
we ask whether there is a genuine issue of material fact; in the
latter, whether a rational jury could find in favor of the party
opposing dismissal.1
All four plaintiffs brought first amendment claims under
Elrod v. Burns, 427 U.S. 347, 360 (1976), asserting that they had
been subjected to dismissal for their political affiliation. This
protection does not apply to policymaking employees whose political
affiliation is pertinent to their positions. Id. at 367. The
district court found that the suspensions imposed on Wilson
constituted an adverse employment action but dismissed Wilson's
claim on the ground that he held a policy position. Wilson, 440 F.
Supp. 2d at 94-96.
1
Johnson v. Gordon, 409 F.3d 12, 16-17 (1st Cir. 2005); Burton
v. Town of Littleton, 426 F.3d 9, 14 (1st Cir. 2005). The district
court said that, in certain respects, the plaintiffs had failed to
comply with local specificity requirements for the filing of a
statement of disputed facts. We bypass this issue because, taking
the plaintiffs' allegations as they stand, the result is no
different.
-5-
On this appeal, Wilson says that he was not really a
policy maker: that he was subject to supervision by the public
safety director (the mayor), had technical expertise, got modest
pay ("57" per year), had civil service protection under the city
charter, was not in fact given effective authority by the mayor,
and was treated badly. But most of these "facts"--which we assume
arguendo--are not highly relevant, and the core issue--the
authority attaching to Wilson's position--is decisive.
Under the city charter, the police chief was in charge
of the division, and the basic operation and discipline of the
police was in the chief's hands. City of Central Falls, Charter,
§ 4-701. The job description is normally of foremost importance,
Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 242 (1st Cir.
1986), cert. denied, 481 U.S. 1014 (1987), and a police chief is
ordinarily high ranking enough to make or influence policy. See
Galloza v. Foy, 389 F.3d 26, 28-30 (1st Cir. 2004); Flynn v. City
of Boston, 140 F.3d 42, 44-45 (1st Cir.), cert. denied, 525 U.S.
961 (1998).
Whether Wilson had civil service protection does not
matter; Wilson's claims under the city charter have not been
preserved on this appeal. Policymaking officials often have
technical expertise as well and often report to a yet higher ranked
official. Flynn, 140 F.3d at 46. That the mayor may have acted
badly and out of private motives also does not matter: because
-6-
Wilson is not protected under Elrod v. Burns, he has no first
amendment claim.
Shannahan said he was constructively discharged but the
district court held otherwise, ruling that hostile statements by
the mayor were not enough. Wilson, 440 F. Supp. 2d at 102. We
agree that the mayor's criticisms did not constitute "working
conditions imposed by the employer . . . so onerous, abusive, or
unpleasant that a reasonable person in the employee's position
would have felt compelled to resign."2 The library "raid," to
which Shannahan also points, occurred after he told the city
council that he was resigning.
Donald P. also claimed violation of his first amendment
rights, pointing to new city bidding and insurance requirements for
contracts of $500 or more. The defendants offered a plausible
explanation for such requirements, which are hardly uncommon;
Donald P. pointed only to proof that he had erected some campaign
signs for the former mayor and donated a modest amount of money.
This is simply not enough to establish that the general
requirements for contractors were political revenge against him.
Mercado, 396 F.3d at 51.
2
Mercado-Alicea v. Puerto Rico Tourism Co., 396 F.3d 46, 52
(1st Cir. 2005) (quoting Suarez v. Pueblo Intern., Inc., 229 F.3d
49, 54 (1st Cir. 2000)); see also Reed v. MBNA Marketing Systems,
Inc., 333 F.3d 27, 33 (1st Cir. 2003) (constructive discharge
requires "harassment so severe and oppressive that staying on the
job while seeking redress--the rule save in unusual cases--is
'intolerable'").
-7-
Both Donald P. and Donald D. made state-law defamation
claims. Donald P.'s claims centered on statements attributed to
Moreau which concerned Donald P.'s status as a convicted felon and
his receipt of large payments under non-bid contracts for library
work. As to Donald D., the mayor had reportedly said that Donald
D. had deleted some computer files during the library search and
that he had produced campaign materials at the library.
But under Gertz v. Robert Welch, Inc. 418 U.S. 323
(1974), even a "private" defamation plaintiff must show actual
injury unless factual statements were made with knowledge that they
were false or with reckless disregard for their truth. The
district judge found no evidence of either actual injury or the
required scienter. Wilson, 440 F. Supp. 2d at 113-14. On appeal,
Donald D. and Donald P. say that their factual assertions were
ignored but point to no evidence--as opposed to conclusory
assertions-- to establish either defendant's scienter or their own
actual damages.
Donald D. and Donald P. also brought state law privacy
claims. The district court dismissed those claims because inter
alia plaintiffs had failed to set forth any specific facts
demonstrating that plaintiffs satisfied the requirements of the
statute. Wilson, 440 F. Supp. 2d at 115. This deficiency persists
on appeal; the plaintiffs merely assert that a privacy claim could
-8-
be based on the same facts alleged with respect to the defamation
claim.
Several claims went to trial: Donald D.'s claim of
patronage firing as against Moreau; Donald P.'s fourth amendment
claims against the mayor and the police officers; and Donald P.'s
state law computer crime claims against the mayor and the police
officers. After plaintiffs' evidence was submitted, the district
judge granted Moreau's Rule 50(a) motion to dismiss both Donald
D.'s patronage firing claim and Donald P.'s claims under the Fourth
Amendment and state law computer crimes.
The two remaining claims (Donald P.'s fourth amendment
claim and computer-law claim against the police detective based on
the library search) were submitted to the jury, and the jury
returned verdicts in favor of the police detective. As a predicate
to these latter claims, the jury was asked whether the computer
technician who had done the actual searching had in fact searched
Donald P.'s personal e-mail. Whether there had been a true search
had been disputed at trial. The jury answered no.
On appeal, the plaintiffs say that the claims against
Moreau based on the search should not have been dismissed; they
argue that even if Moreau did not participate in the search he
could himself have been held liable on a theory of supervisory
liability. They also state that the judge should have instructed
on "presumed damages" as to the search. But since the jury verdict
-9-
established that there had been no search of personal emails, both
issues are moot.
In the district court, the plaintiffs sought recovery on
other claims, not discussed above, some of which are pursued on
this appeal; but such claims have not been adequately developed or
are raised only in the plaintiffs' reply brief and in either event
are forfeit. Mass. Sch. of Law v. Am. Bar Ass'n, 142 F.3d 26, 43
(1st Cir. 1998); Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349,
354 (1st Cir. 1992).
Affirmed.
-10-