United States Court of Appeals
For the First Circuit
No. 15-2224
JOSEPH MCGUNIGLE,
Plaintiff, Appellant,
v.
CITY OF QUINCY; PAUL KEENAN;
JOHN DOUGAN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
Brian Rogal, with whom Rogal & Donnellan, P.C. was on brief,
for appellant.
John R. Hitt, with whom Cosgrove, Eisenberg and Kiley, P.C.
was on brief, for City of Quincy, and individual appellees, in
their official capacities.
Geoffery P. Wermuth, with whom Murphy, Hesse, Toomey & Lehane
LLP was on brief, for individual appellees in their individual
capacities.
August 31, 2016
THOMPSON, Circuit Judge. Plaintiff-appellant Joseph
McGunigle (McGunigle), a former Quincy police officer, brought
this action against the City of Quincy, Chief of Police Paul Keenan
(Chief Keenan), and Captain John Dougan (Captain Dougan)
(collectively, appellees), claiming, among other things, that
appellees retaliated against him for protected speech in violation
of his First Amendment rights. The district court granted
appellees' motion for summary judgment. After careful
consideration, we affirm.
I. BACKGROUND
As required when reviewing an order granting summary
judgment, we summarize the facts in the light most favorable to
the non-moving party — here, McGunigle. Del Valle-Santana v.
Servicios Legales De P.R. Inc., 804 F.3d 127, 128 (1st Cir. 2015).
A. The Long Road to Here
This case has a long, circuitous history. It begins in
2006 with a neighborhood disagreement about leash laws, and
culminates a decade later with alleged witness intimidation.
Because this history provides essential context for our decision,
it is necessary for us to go into some detail here. Bear with us.
B. McGunigle's Dog Ordinance Crusade
In the fall of 2006, McGunigle and his wife, Dianne
McGunigle (Dianne), bought a waterfront home in Quincy,
Massachusetts. Purchasing an oceanfront house had been a life-
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long dream of the McGunigles. Unfortunately, after moving in,
they began witnessing multiple violations of Quincy's dog
ordinances. The ordinances require dog owners to keep their dogs
leashed and to clean up after them, but apparently were not readily
enforced on the beach across from their house. McGunigle claims
that his neighbors frequently "allowed their dogs to roam the
neighborhood" and to defecate on the beach. Tensions between
McGunigle and his neighbors over the dog ordinances escalated,
finally coming to a head in early 2007 when an unleashed Great
Dane attacked McGunigle's dog, and an unleashed Golden Labrador
attacked his wife and "lunged" at a woman holding her six-month-
old child.
In response to the later incident, a "dog hearing" was
held at the Quincy Police Department. As best we can tell, this
hearing was essentially a neighborhood mediation, facilitated by
Captain Dougan. McGunigle was allowed to attend the hearing, but
only if he changed out of his police uniform since he was not
representing the police department at the hearing. He declined to
change and did not attend. His wife, Dianne, did go and testified,
along with other members of the community. At the conclusion of
the hearing, the Golden Labrador's owner agreed to keep her dog on
an expandable leash and to enroll him in dog training courses.
Apparently unhappy with the outcome of the hearing,
McGunigle went to Captain Dougan's office "shortly after" to speak
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with him about the ordinance issue. McGunigle wanted to show
Captain Dougan a videotape that, he claimed, disproved the
testimony of some of his neighbors at the hearing as to whether
the Golden Labrador was let off its leash. Captain Dougan declined
to watch the video, and told McGunigle that it was too late to
present additional evidence because the hearing was over. During
this conversation, McGunigle was in uniform and on duty.
Frustrated by the continued lack of enforcement of the
dog ordinances, the McGunigles continued their campaign against
what they perceived to be a policy of non-enforcement. They
reported violations of the dog ordinances to Quincy Animal Control
Officer Don Conboy, and wrote numerous letters to the Mayor of
Quincy, various city councilors, and the press, expressing their
concerns. By May 2007, McGunigle had decided to take matters into
his own hands, and he began issuing citations for violations of
the dog ordinances to a number of his neighbors. Most of the
neighbors who received citations from McGunigle had testified
adversely to his wife at the hearing. The citations were issued
by McGunigle in his capacity as a Quincy police officer.
McGunigle's neighbors complained to the then-Chief of
the Quincy Police Department, Robert Crowley. Chief Crowley
ordered McGunigle to stop writing dog-ordinance citations to his
neighbors and while off-duty. McGunigle initially complied with
the order. But about a month later, McGunigle started issuing
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citations anew, which prompted his neighbors to again voice
complaints to police leadership about McGunigle's harassment. For
example, one neighbor, who received a citation after walking her
dog on private property, called Captain Dougan in tears explaining
"that she felt that Officer McGunigle was using his authority to
intimidate her." Another neighbor claimed that she received a
citation from McGunigle for having her dog unleashed "but at the
time the ticket was written [she] was at work and [her] dog was
home all day." After receiving these complaints, Chief Crowley
suspended McGunigle for five days for insubordination for
violating his order to stop issuing citations.
In support of McGunigle, the union challenged his
suspension, arguing that Chief Crowley's order was unlawful
because it ran afoul of McGunigle's oath to enforce city
ordinances. An arbitrator ultimately concluded that there was not
just cause to discipline McGunigle because the City of Quincy
failed to respond to the union's inquiry into the lawfulness of
the order. Accordingly, the arbitrator vacated the suspension,
finding that McGunigle could not be suspended "for violation of an
order whose lawfulness had not been determined before [he] was
suspended."
By early September 2007, the press had picked up on the
growing controversy. On September 15, 2007, WHDH Channel 7 News
aired a television report about the dog ordinances, the lack of
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enforcement, McGunigle's crusade, and his suspension. During the
broadcast, McGunigle was shown making the following statement:
"I'm just doing my job, you know, trying to make the neighborhood
safe and, uh, enforcing some violations down there to make it
cleaner." He later added: "We're not quitting; we're just
beginning to fight." McGunigle was off-duty, in plain clothes,
and was standing in front of his house when he was interviewed.
But when the first statement aired, the screen caption read
"Officer Joseph McGunigle, Quincy Police Dept."
A little over a week later, the Boston Globe ran a story
on McGunigle's dispute with his neighbors. Identifying McGunigle
as a Quincy police officer, the article reported that McGunigle
had "issued about 11 citations, with fines of $50 to $100" to his
neighbors, and credited McGunigle with declaring that the dog
ordinance violations have been tolerated for years and that he
"won't put up with it." McGunigle was quoted as saying that he
had "paid $620,000 for [his] oceanfront home" and that he was "not
letting dogs [defecate] on [his] yard." (second alteration in
original). The article also reported allegations by McGunigle's
neighbors that he was harassing and intimidating them. One
neighbor was quoted as saying that he was issued a citation even
though he did not own a dog (his girlfriend did). The article
noted that McGunigle had "acknowledge[d] videotaping" his
neighbors, tearing down a neighbor's fence when he realized it was
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on his property, and that he had previously been suspended from
the police force. But the article also highlighted that McGunigle
had defenders in the community, who agreed that "the dog problem
. . . had gotten out of hand." The paper painted McGunigle as
"unrepentant," crediting him with saying that "he was only
enforcing the law and has done nothing wrong."1
In the wake of all this publicity, the Quincy Sun
reported that the Mayor of Quincy, William Phelan, had approached
McGunigle's wife, Dianne, and told her to "drop" the dog-ordinance
issue and to "let it go." Nevertheless, Mayor Phelan later held
a public meeting to address the issue. The public meeting was
attended by 60 members of the community and several other public
officials. The upshot of this meeting is not set out in the
record. Nor does the record reflect the ultimate resolution of
the dog ordinance controversy. Nearly a year later, Chief Crowley
retired and, in July of 2008, Paul Keenan was promoted to Chief of
Police.
C. End of the Line: Traffic Cones and Witness Intimidation
Three years after Chief Keenan was promoted, and four
years after the dog-ordinance controversy and publicity
1
Although the articles themselves are not contained in the
record, McGunigle acknowledged that, around the same time as the
Boston Globe coverage, the Patriot Ledger and the Quincy Sun ran
similar articles regarding the dog ordinance controversy, but
McGunigle did not recall if he made any comments to those papers.
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surrounding it, McGunigle once again found himself in a dispute
with a neighbor, Michelle Webber.2 On July 30, 2011, McGunigle
pulled up in front of her house — in his police car and wearing
his uniform — and confiscated traffic cones from her driveway.
McGunigle believed that these traffic cones belonged to National
Grid and were stolen. In fact, the traffic cones belonged to
Webber and she had placed them there to stop people from turning
around in her driveway (she lives at the end of a dead end street).
When Webber tried to explain that she owned the traffic cones, she
2 All did not go smoothly for McGunigle in the intervening
years. To begin with, a year after Chief Keenan took over from
Chief Crowley, McGunigle's brother was involved in an altercation
and was criminally charged as a result. As a consequence,
McGunigle missed several days of work and, to justify his absence,
he submitted a doctor's note, explaining that he was having "a
mental health issue." Upon receiving this note, Chief Keenan
promptly placed McGunigle on paid administrative leave, and
ordered him to surrender his firearm and undergo a psychiatric
evaluation. While on paid leave and waiting for the evaluation,
McGunigle was not allowed work details or overtime. In an effort
to get him reinstated immediately, McGunigle's doctor wrote
several follow-up notes to Chief Keenan, clarifying that
McGunigle's absence "was not due to a personal mental health
issue," and opining that he could "return to work." McGunigle
eventually submitted to the ordered psychiatric evaluation, and
once he was cleared, Chief Keenan reinstated McGunigle
immediately.
Then, six months later, McGunigle's wife suffered a heart
attack, and McGunigle requested leave. He was granted three months
under the Family Medical Leave Act (FMLA), but when his leave
expired McGunigle did not return to work. Because McGunigle failed
to provide any updates, he was not granted an extension of his
FMLA leave and his continued absence was considered unexcused sick
time. Once McGunigle returned to work, the leave issue was
"straightened out" and all of McGunigle's accrued vacation and
sick time was restored.
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claims McGunigle looked at her in "an intimidating fit of rage"
and told her that he was taking the cones "before someone [got]
arrested!"
Webber, who had previously received citations from
McGunigle during the dog ordinance brouhaha, filed a citizen
complaint regarding the incident in which she claimed that
"McGunigle was coddling his gun" while talking to her and that she
"believe[d] that [her] life was in danger." Webber added that she
was "very concerned for [her] well being, knowing that [] McGunigle
[was] carrying a loaded weapon," and that she had previously
witnessed "McGunigle's inability to control his rage and anger"
and his "harassment and intimidation" of "the whole community."
According to the police report following-up on Webber's
complaint, multiple witnesses to the exchange noted that the cones
were clearly on Webber's property, and that McGunigle was
"abrasive, loud, and argumentative" during the encounter. These
witnesses echoed Webber's statements, describing McGunigle as
"very threatening," and explaining that his "hostility" "caused
them concern." One witness added that McGunigle "carrying a gun
was '[s]cary.'"
In the aftermath of the traffic cone incident, McGunigle
was suspended pending an investigation. Chief Keenan ordered
McGunigle to turn in his firearm and to stay away from the Quincy
police station. On October 17, 2011, during the ongoing cone
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investigation, and while McGunigle was suspended and subject to
the stay-away order, Webber visited the station to apply for a
firearms license. Minutes after she arrived, McGunigle pulled up
in front of the station. According to McGunigle, he wanted to use
the ATM machine in the lobby. Knowing that McGunigle was suspended
because of the complaint filed by Webber, a lieutenant quickly
escorted Webber to the records room so that she and McGunigle would
not run into each other. When Webber was told that McGunigle had
come to the station while she was there, she "became visibly upset
and shaken" and the lieutenant had to take her to Chief Keenan's
office "to calm her down" before she could depart.
The lieutenant later explained that he thought McGunigle
had followed Webber to the police station, and that McGunigle's
presence there was part of "a pattern of intimidation and
harassment." Based on this new incident, Chief Keenan charged
McGunigle with additional, separate violations for, among other
things, willfully violating the stay-away order and intimidating
a witness.3
3 Around the same time, while the initial cone-incident
charges were still pending, McGunigle requested his personnel
file. In response, McGunigle was provided with a file containing
only four pieces of paper. Believing that he was being denied
access to his file, he lodged a complaint with the Attorney
General's Office. He was then informed that Chief Keenan "was in
the process of giving all [his] files to the union attorney."
Eventually, McGunigle's complete personnel file was provided to
the union attorney, and McGunigle reviewed it in late October 2011.
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An appointing authority held hearings on the cone
incident on November 2, November 21, and December 20, 2011. The
hearing officer found that McGunigle had violated the Department's
personal conduct policy and recommended that the new Mayor of
Quincy, Thomas P. Koch, affirm a five-day suspension without pay.
In addition, the hearing officer recommended that "McGunigle be
suspended for a period of up to thirty days . . . and ordered to
Anger Management Training." On March 9, 2012, Mayor Koch accepted
the recommendation.
Soon thereafter, on March 12, 2012, Chief Keenan revoked
McGunigle's license to carry because he had come to believe that
McGunigle "was unfit to carry a firearm." This revocation decision
was based, in part, on the hearing officer's findings from the
cone incident and, in part, on Chief Keenan's belief that McGunigle
had intentionally harassed and intimidated Webber. Consequently,
on April 23, 2012, Chief Keenan recommended McGunigle's immediate
termination, explaining that he "deemed [McGunigle] to be unfit to
be a City of Quincy Police Officer, and an unsuitable person to
carry and possess a firearm." Additionally, he requested that the
second Webber-incident be reviewed by the appointing authority and
that a disciplinary hearing be held to consider McGunigle's
termination.
The same day Chief Keenan revoked McGunigle's license to
carry a firearm, the Patriot Ledger newspaper ran an article about
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McGunigle's suspension. In a section describing the "traffic cone"
incident, Chief Keenan was quoted as saying: "His version differed
considerably from all of the eyewitness versions . . .
[u]ntruthfulness for a police officer is a serious infraction."
Two weeks later, Chief Keenan was quoted in another
Patriot Ledger article. The article explained that Chief Keenan
had filed a new complaint against McGunigle, alleging that
McGunigle had disobeyed a direct order to stay away from the police
station while out on administrative leave. Chief Keenan was quoted
as saying: "Basically, he walked to the ATM, but I don't believe
he conducted business . . . . We don't believe that he had a
legitimate purpose to be in there. I believe it was in an effort
to intimidate a witness in the previous disciplinary actions." In
a follow-up article that ran in advance of the hearing, the Patriot
Ledger quoted the Chief as saying: "In my 29 years on the force,
there's been nothing like this that I can remember."
A hearing on the second Webber incident was held on May
18, 2012, and on June 12, 2012, the hearing officer recommended
McGunigle's termination. In a written decision, concurring with
Chief Keenan that McGunigle had "exhibited an inability to conform
to the standards of the Quincy Police Department," the hearing
officer concluded that McGunigle's insubordination in refusing to
obey the stay-away order, in conjunction with McGunigle's
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"extensive" disciplinary record,4 "warrant[ed] termination in and
of itself." In particular, the hearing officer found that it was
"more likely than not" that McGunigle was either "actually
following" Webber or that he saw her enter the police station and
was attempting to harass or intimidate her. The hearing officer
also found that termination was supported because McGunigle had
lost his license to carry, which is a condition of employment, and
because he intimidated a witness (Webber), who had filed a
complaint against him. After receipt of the hearing officer's
decision, Mayor Koch terminated McGunigle's employment effective
immediately.
McGunigle promptly sought judicial review of the
revocation of his firearm license. But, on December 4, 2012, the
Quincy District Court upheld the revocation, concluding that "the
revocation of McGunigle's license to carry a firearm [was]
supported." The state court judge added that it was reasonable
for Chief Keenan to "have found that McGunigle was a person who .
. . was out of control and who reflected poor decision making" and
that "[w]hen all [his] behavior [was] pieced together, including
the lobby incident, it was reasonable for [Chief] Keenan to
conclude that McGunigle's behavior was . . . an escalation of
4
Between 1998 and 2011, McGunigle faced multiple disciplinary
violations, however, the exact contours of all these violations
are not divulged in the record.
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improper behavior and that the revocation of his firearms license
was needed to ensure safety." The Massachusetts Superior Court
subsequently affirmed the district court's decision, concluding
that "[g]iven the numerous complaints from neighbors and other
citizens about McGunigle's threatening or harassing behavior and
the allegation from a neighbor that he used his service weapon on
at least one occasion to give further weight to a threat. . .
[Chief] Keenan had reasonable grounds for revoking McGunigle's
[license to carry]."5 See McGunigle v. City of Quincy, 132 F.
Supp. 3d 155, 167 (D. Mass. 2015).
On January 27, 2013, an arbitrator, acting on a union
grievance, affirmed McGunigle's termination, explaining that the
loss of his license to carry provided the city with just cause to
terminate him. The arbitrator made clear, however, that he
"lack[ed] the authority to reconsider the wisdom of . . . Chief
Keenan's revocation action."
5 McGunigle did not appeal the Massachusetts Superior Court
decision. See Mass. Gen. L. c. 140, § 131(f); see also e.g.,
Mazurczyk v. Chief of Police of Chelmsford, No. 14-P-369, 2014 WL
6994664, at *1 (Mass. App. Ct. Dec. 12, 2014) (reviewing District
and Superior Court decisions and considering whether "the chief
acted within the authority granted by G.L. c. 140, § 131, to
determine individual suitability to carry a firearm").
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D. Relevant Federal District Court Proceedings
McGunigle then brought the action at issue here against
the City of Quincy, Chief Keenan, and Captain Dougan, alleging
that he was retaliated against for exercising his First Amendment
rights by making statements to various news organizations in 2007
regarding the dog-ordinance issue. McGunigle also brought a claim
for defamation against Chief Keenan based on the statements he
made to the press in advance of McGunigle's termination hearing.
After various proceedings, not relevant here, appellees
moved for summary judgment on all of McGunigle's remaining claims:
(1) a First Amendment retaliation claim under 42 U.S.C. § 1983;
(2) a claim under the Massachusetts Civil Rights Act (MCRA), Mass.
Gen. L. c. 12 § 11I, against Chief Keenan and Captain Dougan in
their individual capacities; and (3) a claim for defamation against
Chief Keenan. The district court granted the motion, concluding
that McGunigle could not show a § 1983 retaliation claim because
his "relatively weak" interest in commenting on the dog-ordinance
issue did not outweigh "the strong interests of the Quincy Police
Department in maintaining obedience, loyalty, discipline, and the
perception of fairness." McGunigle, 132 F. Supp. 3d at 173.
Moreover, the district court found the evidence "insufficient to
support a claim of a causal connection between the speech and the
alleged retaliation" and that "[e]ven if there were a
constitutional violation, [Chief] Keenan and [Captain] Dougan
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would be entitled to qualified immunity, because objectively
reasonable officials would not have understood under the
circumstances that the conduct at issue could have violated
McGunigle's constitutional right to free speech." Id. at 176.
As a result, the district court concluded that McGunigle
could not establish a claim under the MCRA against Chief Keenan
and Captain Dougan because they did not interfere with McGunigle's
"exercise or enjoyment of rights secured by the Constitution or
the laws of the United States or the Commonwealth." Id. at 177
(quoting Bally v. Ne. Univ., 532 N.E.2d 49 (Mass. 1989)). The
district court also concluded that McGunigle could not maintain a
defamation claim against Chief Keenan for statements that appeared
in the 2012 newspaper articles because "none of the quotes from
[Chief] Keenan are capable of defamatory interpretations." Id. at
180. McGunigle timely appealed.
II. DISCUSSION
Before us, McGunigle argues that the district court
erred in granting summary judgment on his First Amendment claims
because (1) when he made the 2007 statements to the press regarding
the dog-ordinance issue he was speaking as a private citizen on a
matter of public concern; (2) his interest in commenting on the
dog-ordinance issue outweighed his employer's interests; and (3)
there is sufficient evidence in the record to permit a jury to
find that his protected speech was a substantial motivating factor
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in his termination. He also argues that there is sufficient
evidence of threats against him to sustain his MCRA claim.
Finally, McGunigle argues that his defamation claim against Chief
Keenan was improperly dismissed because Chief Keenan's statements
"were clearly defamatory."6
Summary judgment is appropriate when "there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56. Our review
is de novo, and we examine the record in the light most favorable
to the nonmoving party and draw all reasonable inferences in that
party's favor. Del Valle-Santana, 804 F.3d at 129. We are not
bound by the district court's reasoning and we may "affirm the
entry of summary judgment on any ground apparent from the record."
Rodriguez-Sanchez v. Municipality of Santa Isabel, 658 F.3d 125,
129 (1st Cir. 2011).
A. Section 1983 Retaliation Claim
"[T]he law is settled that as a general matter the First
Amendment prohibits government officials from subjecting an
individual to retaliatory actions . . . for speaking out."
Mercado-Berrios v. Cancel-Alegría, 611 F.3d 18, 25 (1st Cir. 2010)
6 McGunigle also makes a confusing, throwaway argument that
appellees' claim that they were not motivated by McGunigle's speech
necessarily forecloses Chief Keenan's and Captain Dougan's
qualified immunity defense. Because we do not reach the merits of
the parties' qualified immunity arguments, we do not attempt to
tease out this argument.
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(omission in original) (quoting Hartman v. Moore, 547 U.S. 250,
256 (2006)). This rule holds true in public employment as well,
but "in recognition of the government's interest in running an
effective workplace, the protection that public employees enjoy
against speech-based reprisals is qualified." Id. at 26; see also
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) ("When a citizen
enters government service, the citizen by necessity must accept
certain limitations on his or her freedom.").
To succeed on his § 1983 First Amendment retaliation
claim, McGunigle must establish that: (1) he was speaking "as a
citizen on a matter of public concern"; (2) his interests, "as a
citizen, in commenting upon matters of public concern" outweighed
his employer's interest "in promoting the efficiency of the public
services it performs through its employees"; and (3) "the protected
expression was a substantial or motivating factor in the adverse
employment decision." Decotiis v. Whittemore, 635 F.3d 22, 29
(1st Cir. 2011) (quoting Curran v. Cousins, 509 F.3d 36, 44-45
(1st Cir. 2007)). Even if all three inquiries are resolved in
McGunigle's favor, "the employer may still escape liability if it
can show that it would have reached the same decision even absent
the protected conduct." Id. (quoting Rodríguez–García v. Miranda–
Marín, 610 F.3d 756, 765–66 (1st Cir. 2010)).
The district court bypassed step one and proceeded to
step two, determining that McGunigle's claim failed at the second
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step.7 McGunigle, 132 F. Supp. 3d at 173. Specifically, the
district court concluded that McGunigle's interest in commenting
on the dog-ordinance issue did not outweigh his employer's
interests "in maintaining the obedience and loyalty of its police
officers" and "in setting enforcement priorities and ensuring that
those priorities are implemented in a fair and sensible manner."
Id. at 172-73; see also Decotiis, 635 F.3d at 35 (explaining that
at step two the court must apply the Pickering test, which
"balance[s] the value of an employee's speech -- both the
employee's own interests and the public's interest in the
information the employee seeks to impart -- against the employer's
legitimate government interest in 'preventing unnecessary
disruptions and inefficiencies in carrying out its public service
mission'" (quoting Guilloty Perez v. Pierluisi, 339 F.3d 43, 52
(1st Cir. 2003)). But because, as we explain below, we conclude
that McGunigle has failed to offer any evidence demonstrating a
causal connection between his speech and the adverse employment
7
At the first step, we, like the district court, are skeptical
that McGunigle was acting as a private citizen. His statements
to WHDH Channel 7 News and to the Boston Globe that he was "just
doing [his] job," and that "he was only enforcing the law"
certainly give the impression that he was speaking as a police
officer and not as a citizen. See Foley v. Town of Randolph, 598
F.3d 1, 6 (1st Cir. 2010) (explaining that "when public employees
make statements 'pursuant to their official duties,' they are not
speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communication from employer
discipline" (quoting Garcetti v. Ceballos, 547 U.S. 421 (2006)).
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actions, we will not tarry at step one or two, but will proceed
directly to the third step of the retaliation inquiry -- causation.
As noted above, to succeed on his First Amendment
retaliation claim, McGunigle must introduce sufficient evidence to
allow a finding that his speech "was a substantial or motivating
factor behind the adverse employment action." Guilloty Perez, 339
F.3d at 55. Although McGunigle may rely on circumstantial evidence
to make this showing, he must produce some facts linking his
employer's adverse employment actions to his protected conduct.
Id. at 55-56. "If [McGunigle] succeeds in establishing this causal
relationship, the burden of persuasion shifts to the defendants to
prove . . . that the adverse employment action would have been
taken 'even in the absence of the protected conduct.'" Id. at 56
(quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977)).
McGunigle argues, in essence, that he produced
sufficient circumstantial evidence to show that, after he spoke
out about the police department's failure to enforce the dog
ordinances, Chief Keenan had it in for him. McGunigle claims that
Chief Keenan employed "a pattern of serious, unsupported adverse
employment actions" to punish him for speaking out. Although
McGunigle seemed to concede at oral argument that the only
potentially actionable adverse employment actions were Chief
Keenan's 2012 revocation of his license to carry and McGunigle's
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subsequent termination, McGunigle points to a variety of other
allegedly harassing incidents as evidence of Chief Keenan's
animus.8 Most concretely, McGunigle relies on Chief Keenan's 2009
order that McGunigle surrender his firearm and undergo a
psychiatric evaluation, and the Department's handling of his FMLA
leave as evidence of Chief Keenan's harassment (see footnote 2).
But even assuming, favorably to McGunigle, that Chief
Keenan's requirement that McGunigle undergo a psychiatric
evaluation and his handling of the FMLA leave amounted to adverse
employment actions in the § 1983 context,9 Barton v. Clancy, 632
F.3d 9, 29 (1st Cir. 2011) (explaining that "the 'adverse
employment action' inquiry in the section 1983 context focuses on
whether an employer's acts, viewed objectively, place substantial
pressure on the employee's political views" and noting that "[a]
8
McGunigle argues that the jury could also consider, as
evidence of Chief Keenan's harassment: (1) Chief Keenan's
statement in a deposition that he agreed with Chief Crowley's order
to stop issuing citations; (2) an unsupported allegation that Chief
Keenan had personal animosity towards McGunigle; (3) the fact that
Chief Keenan admitted at the deposition that he had seen the WHDH
Channel 7 news report; and (4) the fact that McGunigle's personnel
file contained copies of the dog ordinance newspaper articles.
9
We note that these allegedly harassing incidents were
eventually resolved without detriment to McGunigle. Once he
returned to work, McGunigle's FMLA leave was recognized and his
sick time restored. And McGunigle admits that Chief Keenan "had
the right to require [] McGunigle to submit to a mental health
examination" after receiving a note from McGunigle's personal
physician declaring that McGunigle was having "a mental health
issue."
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campaign of informal harassment . . . would support a First
Amendment retaliation claim if the alleged harassment would have
[] a chilling effect"), McGunigle points to nothing linking these
incidents to his protected speech. He simply argues that they
must have been in retaliation for his speech because they happened
afterwards.
McGunigle admits, however, that for the purposes of his
First Amendment claim his only relevant speech was in the fall of
2007. In other words, McGunigle acknowledges that there was a
temporal gap of at least two years between his speech and the first
allegedly harassing incident -- Chief Keenan's requirement that
McGunigle submit to a psychiatric evaluation -- and a gap of over
five years between his protected speech and the loss of his license
to carry and his discharge. McGunigle does not answer for this
causation gap, which, standing alone, is too long to support an
inference of a causal connection between his speech and the adverse
employment actions absent other evidence of improper motive. See,
e.g., González-Droz v. González-Colón, 660 F.3d 1, 17 (1st Cir.
2011) (finding that "an interval of [fourteen months] cannot
establish the necessary linkage between protected speech and some
challenged action"); Lewis v. City of Boston, 321 F.3d 207, 218
(1st Cir. 2003) (finding that a temporal gap of "over a year and
a half before [the plaintiff] was terminated . . . seriously
undermines his temporal proximity argument").
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Any inference that McGunigle's speech was the motivating
factor behind Chief Keenan's revocation of his license to carry
and his termination is further undermined by the fact that Chief
Keenan was not even the Chief at the time of the protected speech.
McGunigle offers no explanation of why Chief Keenan would retaliate
against him for actions that occurred a year before he became
Chief, and the record similarly provides no insight.
On the other hand, the record suggests, even when viewed
favorably to McGunigle, that Chief Keenan's concerns about
McGunigle's temperament were reasonable. As discussed above, in
the lead up to McGunigle's termination, Chief Keenan received
numerous complaints about McGunigle's handling of the traffic cone
incident. Multiple witnesses claimed that McGunigle had been
"abrasive, loud, and argumentative" during his interactions with
Webber. One witness, who actually described himself as a "friend"
of McGunigle's, added that McGunigle having or "carrying a gun was
'scary.'" Webber echoed these concerns in her citizen complaint,
explaining that she felt unsafe around McGunigle and was "very
concerned for [her] well being, knowing that [] McGunigle [was]
carrying a loaded weapon."
Against this backdrop, it was certainly reasonable for
Chief Keenan to be concerned about McGunigle's fitness to carry
and possess a firearm. And whatever McGunigle's subjective
intentions, when McGunigle then disobeyed Chief Keenan's stay-away
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order and followed Webber into the police station, it was similarly
rational for Chief Keenan to worry that McGunigle was intentionally
harassing and intimidating her. Indeed, when the Quincy District
Court upheld the revocation of McGunigle's firearm license, it
unambiguously concluded that it was reasonable for Chief Keenan to
"have found that McGunigle was a person who . . . was out of
control and who reflected poor decision making." Furthermore, the
record supports the inference that McGunigle's behavior may have
been escalating, and McGunigle has presented no probative evidence
demonstrating that Chief Keenan's stated reasons for revoking his
license to carry were pre-textual.
Piecing all of McGunigle's behavior together, then, not
only has McGunigle failed to establish a causal connection between
his protected speech and the adverse employment actions, but
appellees have met their burden to show that they would have taken
the same adverse employment actions regardless of McGunigle's 2007
speech. See Guilloty Perez, 339 F.3d at 56 (noting that "[i]f the
plaintiff succeeds in establishing this causal relationship, the
burden of persuasion shifts to the defendants to prove 'by a
preponderance of the evidence' that the adverse employment action
would have been taken 'even in the absence of the protected
conduct.'" (quoting Lewis, 321 F.3d at 219 and Mt. Healthy, 429
U.S. at 287). We therefore conclude that McGunigle's § 1983 First
Amendment retaliation claim fails at the summary judgment stage.
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B. MCRA Claim
Having found that McGunigle has proffered insufficient
facts to survive a motion for summary judgment on his § 1983 claim,
we can make short work of his MCRA claim against Chief Keenan and
Captain Dougan in their individual capacities. To prevail,
McGunigle must show that "(1) his exercise or enjoyment of rights
secured by the Constitution or laws of either the United States or
of the Commonwealth (2) has been interfered with, or attempted to
be interfered with, and (3) that the interference or attempted
interference was by threats, intimidation or coercion." Bally,
532 N.E.2d at 51–52 (quoting Mass. Gen. L. c. 12, § 11H). For the
reasons discussed in some detail above, we conclude that Chief
Keenan and Captain Dougan did not interfere with McGunigle's
"exercise or enjoyment of rights secured by the Constitution or
laws of either the United States or of the Commonwealth." Id.
Moreover, we agree with the district court that
McGunigle has failed to identify threats, intimidation, or
coercion by Chief Keenan or Captain Dougan sufficient to give rise
to an MCRA claim. See Planned Parenthood League of Mass., Inc. v.
Blake, 631 N.E.2d 985, 990 (Mass. 1994) (explaining that "threat"
"involves the intentional exertion of pressure to make another
fearful or apprehensive of injury or harm"; "intimidation"
"involves putting in fear for the purpose of compelling or
deterring conduct"; and "coercion" involves "the application to
- 25 -
another of such force, either physical or moral, as to constrain
him to do against his will something he would not otherwise have
done"). McGunigle points to only one comment by either Chief
Keenan or Captain Dougan that he claims rises to the level of
threats, intimidation, or coercion: an alleged January 2009
statement by Captain Dougan to a union representative that if
McGunigle did not "watch himself," he was "gonna get canned."10
This single alleged comment -- made not to McGunigle,
but to a third-party -- is likely insufficient to sustain
McGunigle's MCRA claim. Regardless, as the district court noted
in an earlier Rule 12(b)(6) proceeding, the statute of limitations
for McGunigle's MCRA claim is three years, see Flynn v. Associated
Press, 519 N.E.2d 1304, 1305 (Mass. 1988), and therefore any
"retaliatory acts that took place prior to May 11, 2009 are
untimely and no longer actionable," McGunigle v. City of Quincy,
No. 12-10852-JLT, 2013 WL 3892901, at *2 (D. Mass. July 25, 2013).
10McGunigle also points to Mayor Phelan's reported comment
to McGunigle's wife that she should "drop" the dog-ordinance issue
and "let it go." But we are unsure how Mayor Phelan's statement
amounts to threats, intimidation, or coercion by Chief Keenan or
Captain Dougan. And we do not see how Mayor Phelan's reported
statement to McGunigle's wife equals an interference with
McGunigle's exercise or enjoyment of rights secured by the federal
or state constitution by threats, intimidation, or coercion.
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Accordingly, we conclude that McGunigle's MCRA claim also fails at
the summary judgment stage.11
C. Defamation Claim
Finally, McGunigle argues that his defamation claim
against Chief Keenan was improperly subjected to summary judgment
because Chief Keenan's statements to the press in the wake of the
traffic cone incident "were clearly defamatory."
To succeed on his defamation claim, McGunigle must show
that: (1) Chief Keenan "made a statement, concerning [McGunigle],
to a third party"; (2) "the statement was defamatory such that it
'could damage [McGunigle's] reputation in the community'"; (3)
Chief Keenan "was at fault in making the statement"; and (4) the
statement caused McGunigle to suffer either "economic loss . . .
or is actionable without proof of economic loss." Shay v. Walters,
702 F.3d 76, 81 (1st Cir. 2012) (quoting Ravnikar v. Bogojavlensky,
782 N.E.2d 508, 510–11 (Mass. 2003)). And because police officers
are "public officials" for the purposes of a defamation action,
McGunigle cannot recover on his defamation claim unless he also
"proves by clear and convincing evidence that [Chief Keenan] made
the false statement with actual malice." Rotkiewicz v. Sadowsky,
730 N.E.2d 282, 287, 289 (Mass. 2000). This means that McGunigle
11 Because we conclude that McGunigle's § 1983 retaliation
claim and MCRA claim fail, we need not address the parties'
qualified immunity arguments.
- 27 -
must show that Chief Keenan "published" the defamatory statement
with "knowledge that it was false or reckless disregard of whether
it was false." Id. at 289 (quoting Stone v. Essex Cty. Newspapers,
Inc., 330 N.E.2d 161, 173 (Mass. 1975)). It is McGunigle's burden
to prove that the "allegedly defamatory statement[s are]
materially false." Yohe v. Nugent, 321 F.3d 35, 41 (1st Cir.
2003).
McGunigle relies on two Patriot Ledger articles to
support his defamation claim. First, McGunigle points to the March
12, 2012, article where Chief Keenan is quoted as saying that
McGunigle's "version [of the cone incident] differed considerably
from all of the eyewitness versions" and that "[u]ntruthfulness
for a police officer is a serious infraction." Next, McGunigle
points to the March 21, 2012, article concerning the revocation of
McGunigle's license to carry due to allegations that he intimidated
Webber. In that article, Chief Keenan is quoted as saying that
"[b]asically [McGunigle] walked to an ATM, but I don't believe he
conducted business . . . . We don't believe that he had a
legitimate purpose to be in there. I believe it was in an effort
to intimidate the witness in the previous disciplinary case."12
12 In the district court, McGunigle relied on an additional
defamatory statement: a May 2, 2012 article about McGunigle's
termination hearing where Chief Keenan is quoted as saying "[i]n
my 29 years on the force, there's been nothing like this that I
can remember." The district court concluded that the statement
was merely "an example of 'rhetorical hyperbole'" and that it could
- 28 -
McGunigle argues that these statements were defamatory
and that Chief Keenan knew them to be false. But to succeed on
his defamation claim, McGunigle must proffer "sufficient evidence
to permit the conclusion that [Chief Keenan] in fact entertained
serious doubts as to the truth of his [statements]." Stone, 330
N.E.2d at 173. This is an entirely subjective inquiry, Rotkiewicz,
730 N.E.2d at 289, and McGunigle points to nothing in the summary
judgment record that suggests Chief Keenan made these statements
knowing that they were false or with reckless disregard for their
truth or falsity. See id. at 287.
To the contrary, as discussed in some detail above, the
evidence suggests that Chief Keenan reasonably believed that
McGunigle was lying about the cone incident and about intentionally
harassing Webber -- remember: Chief Keenan had previously charged
McGunigle with untruthfulness about the cone incident; the cone
incident eye-witness statements, if not considerably different
from McGunigle's version of events, at least tended to corroborate
Webber's version; the lieutenant who witnessed the second Webber
incident also thought that McGunigle had followed Webber to the
police station as part of "a pattern of intimidation and
harassment"; and the second hearing officer similarly concluded
not "form the basis for a defamation claim." McGunigle v. City of
Quincy, 132 F. Supp. 3d 155, 179 (D. Mass. 2015). McGunigle does
not renew this claim on appeal.
- 29 -
that McGunigle was likely attempting to harass or intimidate
Webber.
Viewing the record as a whole, then, it is clear that
the allegedly defamatory statements reflect Chief Keenan's honest
belief that McGunigle had been untruthful and that he had
intimidated a witness, and McGunigle has offered no evidence that
Chief Keenan believed any of the statements' implied facts to be
false, or that Chief Keenan recklessly disregarded any actual
facts. See Rotkiewicz, 730 N.E.2d at 289. We therefore agree
with the district court that no genuine issue of material fact
exists as to whether Chief Keenan's statements were defamatory.
III. CONCLUSION
For the reasons articulated above, we affirm. Costs to
appellees.
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McGunigle v. City of Quincy
Court: Court of Appeals for the First Circuit
Date filed: 2016-08-31
Citations: 835 F.3d 192, 41 I.E.R. Cas. (BNA) 1057, 2016 U.S. App. LEXIS 16140, 2016 WL 4570420
Copy CitationsCombined Opinion