Tripp v. Cole

United States Court of Appeals
For the First Circuit

No. 04-2588

DARREN M. TRIPP,

Plaintiff, Appellant,

v.

SCOTT COLE; TOWN OF BETHEL,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Stephen C. Chute, with whom Carey & Associates P.A. was on
brief, for appellant.
Anne M. Carney, with whom Norman, Hanson & Detroy, LLC was on
brief, for appellees.

September 27, 2005
 LIPEZ, Circuit Judge. The events that generated this

case began with a "dog at large" in Bethel, Maine and ended with

the termination of the town's chief of police. As a result of the

investigation and prosecution of the dog at large incident, a

disagreement arose between the police chief, plaintiff-appellant

Darren Tripp, and the town manager, defendant-appellee Scott Cole.

Cole wanted Tripp to intercede with the district attorney on behalf

of the dog owner; Tripp expressed his discomfort with the request.

Four months later, citing various issues unrelated to the dog at

large incident, Cole suspended Tripp for a month; he later fired

him. Tripp then sued Cole and the Town of Bethel, claiming that he

had been retaliated against for speech protected under the First

Amendment and state law. The district court granted summary

judgment for defendants. We affirm.

I.

A. Facts

We recite the facts in the light most favorable to the

non-movant, Tripp, and draw all reasonable inferences in his favor.

Smith v. Robertshaw Controls Co., 410 F.3d 29, 31 (1st Cir. 2005).

In October 2002, Chief Tripp observed a dog at large and

called the town's animal control officer. According to witnesses

(including the town engineer), the animal control officer pursued

the dog into the owner's garage and captured it there, when,

-2-
arguably, it was no longer a dog at large. A summons was issued to

the dog's owner, Sherry Thurston.

Thurston repeatedly called Cole to complain about the

summons. Eventually (after checking with the town engineer), Cole

asked Tripp to dismiss the summons. Tripp -- who surreptitiously

recorded the conversation -- responded that the matter was now in

the district attorney's hands. Cole then asked Tripp to ask the

district attorney to "dump" the summons, and insisted on Tripp's

word that he would do so. Tripp responded, "I can ask the DA what

he wants to do, but when it comes this far, you know I'm not

comfortable doing this."

At Thurston's arraignment in November 2002, Tripp

dutifully passed along Cole's request to the assistant district

attorney (ADA).1 That same day, Cole e-mailed Tripp to ask whether

he had asked the ADA to dismiss the case. Tripp went to Cole's

office and told him that he had relayed Cole's request, although

Cole testified at his deposition that he had no idea whether or not

Tripp had relayed the request. The record is unclear as to what

ultimately happened with the summons.

At some point that winter, Tripp spoke to two Bethel

selectmen and noted that his relationship with Cole had "cooled,"

due, in his opinion, to the Thurston summons issue. The selectmen

1
The record does not reveal the ADA's response.

-3-
agreed, although without a particular basis for personal knowledge

disclosed by the record.

In March 2003, Cole gave Tripp a written notice of a one-

month suspension from duty with pay. The notice listed a variety

of alleged misdeeds by Tripp, some of which were two years old,

most of which had never been mentioned to Tripp before, and none of

which had ever been noted in his personnel file. Tripp conceded

that some, though not all, were true. His suspension ended in

April 2003, and he returned to duty.

In January 2004, Cole gave Tripp a document describing

Tripp's failure to respond to an armed robbery call in December

2003. The incident was investigated over the next month. In

February 2004, Tripp was terminated from his job for cause. He

appealed to the Board of Selectmen, which upheld the termination by

a 3-2 vote.

B. Procedural history

Tripp sued Cole and the Town, alleging a claim under 42

U.S.C. § 1983 and three claims under state law. Tripp does not

appeal the disposition of two of the state law claims and we do not

discuss them. The claims at issue in this appeal are that

defendants retaliated against Tripp for (1) speech protected by the

First Amendment, in violation of § 1983 (Count I), and for (2)

reporting a violation of Maine law, in violation of the Maine Human

Rights Act (MHRA), Me. Rev. Stat. Ann. tit. 5, §§ 4551-4634, and

-4-
the Maine Whistleblowers' Protection Act (MWPA), Me. Rev. Stat.

Ann. tit. 26, §§ 831-840 (Count III).2 The case was referred to a

magistrate judge, and the parties cross-moved for summary judgment.

The magistrate judge recommended summary judgment for

defendants on both claims. Tripp v. Cole, No. 03-289, 2004 U.S.

Dist. LEXIS 25124 (D. Me. Sept. 24, 2004) ("Tripp I"). The

magistrate judge evaluated the MHRA/MWPA claim first, on the theory

that "'[w]hen balancing the rights of the employee against those of

the employer, an employee's First Amendment interest is entitled to

greater weight where he is acting as a whistle-blower in exposing

government corruption.'" Id. at *12 (quoting Guilloty Perez v.

Pierluisi, 339 F.3d 43, 53 (1st Cir. 2003)). The magistrate judge

found that a reasonable person in Tripp's position would not have

believed Cole's request was illegal, and furthermore Tripp never

actually reported a violation. On the First Amendment claim, the

magistrate judge found that the speech at issue did not address a

matter of public concern. The district court reviewed the

magistrate's report and recommendation de novo and adopted it in

full. Tripp v. Cole, No. 03-289, 2004 U.S. Dist. LEXIS 20740 (D.

Me. Oct. 13, 2004). This appeal followed.

2
The MWPA prohibits discrimination against employees because
of whistleblowing activities, but the MHRA provides the individual
cause of action for an MWPA violation. See infra note 4.

-5-
 II.

Passing over two issues that require little discussion,3

we discern two main arguments in Tripp's appeal. First, he argues

that the court wrongly held that his conduct was not protected by

the MWPA. Tripp asserts that Cole's request was an unlawful

obstruction of government administration which Tripp reported to

Cole himself and to two Bethel selectmen. Second, Tripp argues

that the court wrongly held that his speech was not protected by

the First Amendment because it did not involve a matter of public

concern. He argues that his speech involved the important public

issue of the legality and propriety of town officials interceding

on behalf of affluent citizens to give them more favorable

treatment in court. We review the district court's grant of

summary judgment de novo. Smith, 410 F.3d at 34.

3
First, Tripp claims that the magistrate judge erred in
striking his post-discovery affidavit on the grounds that it
contradicted his deposition testimony. The magistrate judge
granted the motion to strike but expressly stated that the summary
judgment ruling did not depend on this evidentiary ruling because
it resolved the case on legal grounds for which the evidentiary
dispute was irrelevant. We follow a similar path, assuming
arguendo that the affidavit is part of the evidentiary record.
Second, Tripp claims that defendants denied him due process,
and therefore the court should have (1) excluded defendants'
evidence of reasons for his suspension and termination, and (2)
granted partial summary judgment declaring that the reason for the
adverse action was retaliation. We read this argument charitably
to say that, because defendants did not give Tripp a proper
opportunity to respond to the allegations against him, they should
not be permitted to rely on those allegations to justify his
termination. Because Tripp did not plead a due process claim in
his complaint, he has forfeited any such argument.

-6-
A. Whistleblower Retaliation

Under the MWPA, "[n]o employer may discharge . . . or

otherwise discriminate against an employee . . . because[] [t]he

employee, acting in good faith, . . . reports orally or in writing

to the employer or a public body what the employee has reasonable

cause to believe is a violation of a law." Me. Rev. Stat. Ann.

tit. 26, § 833(1)(A).4 "[A] prima facie case of reprisal for

whistleblowing requires that the employee show that (1) he engaged

in activity protected by the statute, (2) he was the subject of

adverse employment action, and (3) there was a causal link between

the protected activity and the adverse employment action." Bard

v. Bath Iron Works Corp., 590 A.2d 152, 154 (Me. 1991).

Under the MWPA, the complained-of conduct need not

actually be illegal, but the employee must "prove that a reasonable

person might have believed" that it was. Id. at 155; see also

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 262 (1st

Cir. 1999) (explaining that "an employee's reasonable belief that

[the conduct] crosses the line suffices"). Tripp argues that it

was reasonable to believe that Cole's request to ask the prosecutor

to "dump" the Thurston summons was a violation of Me. Rev. Stat.

Ann. tit. 17-A, § 751(1), under which "[a] person is guilty of

4
Although the MWPA itself provides no private right of action,
complainants may, after appropriate administrative process, file a
civil action under the MHRA. See Schlear v. Fiber Materials, Inc.,
574 A.2d 876, 878-79 (Me. 1990).

-7-
obstructing government administration if the person intentionally

interferes by force, violence or intimidation or by any physical

act with a public servant performing . . . an official function."

In Tripp's view, Cole attempted to interfere by intimidating Tripp

into seeking the termination of an ongoing criminal proceeding;

Tripp informed Cole and two selectmen that such a request was

illegal; and he was suspended (and eventually fired) as a result.

The district court found that Tripp had not engaged in

protected activity for two independent reasons: (1) a reasonable

person would not have considered Cole's request to be an

obstruction of government administration, and (2) Tripp never

reported to anyone his alleged belief that Cole's request was

illegal. See Tripp I, 2004 U.S. Dist. LEXIS 25124 at *15-16. We

find the first ground adequate to sustain the judgment, and do not

address the second.

Although the language of § 751 could theoretically apply

to a broad range of conduct, Maine courts have construed the

provision narrowly. In particular, we have not found, and Tripp

has not cited, any Maine case where a government official was

prosecuted under § 751 for an order to a subordinate employee. To

the contrary, in virtually all of the reported cases under § 751

and its predecessor common law doctrine, the defendant had

attempted to prevent a law enforcement officer from effecting a

search or arrest. Therefore, if we accepted Tripp's theory, he

-8-
would be the first victim of that particular form of obstructing

government administration in over 100 years of reported Maine

cases. To be sure, the words of the statute do not foreclose the

possibility that § 751 could apply to a public official's order to

a subordinate. But "[i]f we are unwilling to stretch state

precedents to reach new frontiers, a litigant like [Tripp], who

deliberately chose to reject a state-court forum in favor of a

federal forum . . . is in a perilously poor position to grumble

about our stodginess." Porter v. Nutter, 913 F.2d 37, 41 (1st Cir.

1990) (quotation marks omitted).

Second, even if it were possible that a town manager's

order to a chief of police to ask prosecutors to dismiss a summons

could constitute "intentionally interfer[ing] . . . with a public

servant performing . . . an official function," Cole's request did

not -- and could not have been reasonably believed to -- qualify as

"intimidation" under § 751.5 Maine courts have defined

"intimidation" in this context as "unlawful coercion, extortion,

duress, or putting in fear." State v. Matson, 818 A.2d 213, 215

(Me. 2003) (quotation marks omitted). Tripp cites Cole's statement

that "I made my request and I'm expecting it to be honored."

Viewed in the light most favorable to Tripp, this statement might

sound like a vaguely worded threat to his continued employment with

5
Tripp does not claim that Cole interfered by "force,
violence, or . . . physical act," id. § 751(1).

-9-
the Town. But Maine courts have interpreted § 751 to require much

more than vaguely worded threats. See Matson, 818 A.2d at 214-15

(vacating § 751 conviction where defendant physically interfered

with police officer's arrest of another person, but did not strike

officer, threaten him, or call him names, because such conduct was

not "intimidation"); State v. Janisczak, 579 A.2d 736, 738 (Me.

1990) (vacating § 751 conviction where defendant had yelled and

cursed at officers as they struggled with a large, violent suspect,

because such conduct was not "intimidation"). Accordingly, summary

judgment was proper on the MWPA claim.

B. First Amendment

According to Tripp, Cole and the Town retaliated against

him for speech protected by the First Amendment, namely (1) his

conversation with Cole, and (2) his remark to two selectmen that

his relationship with Cole had "cooled" as a result of the Thurston

summons incident.

In assessing a public employee's claim of workplace

retaliation for speech, we apply a three-part test: "(1) whether

the speech involves a matter of public concern; (2) whether, when

balanced against each other, the First Amendment interests of the

plaintiff and the public outweigh the government's interest in

functioning efficiently; and (3) whether the protected speech was

a substantial or motivating factor in the adverse action against

the plaintiff." Mihos v. Swift, 358 F.3d 91, 102 (1st Cir. 2004).

-10-
The district court determined that Tripp's speech at issue did not

involve a matter of public concern. We review that decision de

novo. O'Connor v. Steeves, 994 F.2d 905, 912 (1st Cir. 1993).

"Whether an employee's speech addresses a matter of

public concern must be determined by the content, form, and context

of a given statement, as revealed by the whole record." Connick v.

Myers, 461 U.S. 138, 147-48 (1983). In some cases the content

alone establishes the public nature of the matter; in others the

form and context make it so:

Where a public employee speaks out on a topic
which is clearly a legitimate matter of
inherent concern to the electorate, the court
may eschew further inquiry into the employee's
motives as revealed by the 'form and context'
of the expression. On the other hand,
public-employee speech on a topic which would
not necessarily qualify, on the basis of its
content alone, as a matter of inherent public
concern (e.g., internal working conditions,
affecting only the speaker and co-workers),
may require a more complete Connick analysis
into the form and context of the
public-employee expression, 'as revealed by
the whole record,' with a view to whether the
community has in fact manifested a legitimate
concern in the internal workings of the
particular agency or department of government,
and, if so, whether the 'form' of the
employee's expression suggests a subjective
intent to contribute to any such public
discourse.

O'Connor, 994 F.2d at 913-14 (citations and emphases omitted).

We first address Tripp's statements to the selectmen that

his relationship with Cole had "cooled." These are classic

examples of speech concerning "internal working conditions,

-11-
affecting only the speaker and co-workers." Id. at 914. Moreover,

the record does not reveal that "the community has in fact

manifested a legitimate concern in the internal workings" of the

Bethel police department or its interactions with the Town Manager,

nor that "the 'form' of [Tripp's] expression suggests a subjective

intent to contribute to any such public discourse." Id. That ends

that matter.

Perhaps recognizing that the disposition of a particular

"dog at large" summons is rarely a "matter of inherent concern to

the electorate," id. at 913-14, Tripp invokes larger themes. In

his view, the public concern of his speech lay in the principle

that "[a] citizen from an affluent neighborhood of the community

should abide by the same rules and be subject to the same

consequences as those from more modest circumstances." Tripp made

a similar argument to the magistrate judge. As she noted,

"[a]ccording to Tripp, 'there can be no higher public concern than

to have justice evenly administered without the Town's

administrators capriciously granting favors to special citizens.'"

Tripp I, 2004 U.S. Dist. LEXIS 25124 at *18. However, as the

magistrate judge also observed,"[t]he problem with this argument is

that it does not identify any 'given statement' by Tripp; it only

offers Tripp's personal opinion as to what Cole's personal motives

were when he interceded on Ms. Thurston's behalf." Id. The

magistrate judge was correct. In the absence of any citation to

-12-
evidence in the summary judgment record that Tripp explained to

Cole his concern about the unequal administration of justice, Tripp

cannot establish that his speech to Cole invoked a matter of public

concern which led to his retaliatory dismissal.

Tripp cites only his statement to Cole that he was "not

comfortable" with Cole's request. An opaque statement such as "I'm

not comfortable doing this" is not "clearly a legitimate matter of

inherent concern to the electorate." Id. (emphases added). It

certainly does not invoke the unequal administration of justice

concern. As stated, the content of Tripp's speech conveyed nothing

more than his preference not to intercede with the ADA in the

resolution of a particular dog at large summons.

The "form and context" analysis does not assist Tripp

either. Under O'Connor, speech on internal working conditions may

rise to the level of public concern if "the community has in fact

manifested a legitimate concern in the internal workings of the

particular agency or department of government, and . . . the 'form'

of the employee's expression suggests a subjective intent to

contribute to any such public discourse." 994 F.2d at 914; see,

e.g., Baron v. Suffolk County Sheriff's Dep't, 402 F.3d 225, 234-35

(1st Cir. 2005) (noting that community had manifested concern in

the internal workings of sheriff's department, citing newspaper

articles and report commissioned by governor in response to

allegations of mismanagement).

-13-
 Here, the record does not reveal either community

interest in the process by which citizen complaints regarding

summonses for minor infractions are handled, nor any intent on

Tripp's part to contribute to (or create) a public discussion on

the topic. To be sure, as the magistrate judge noted, "[i]t is not

difficult to conceive of slightly different speech under slightly

different circumstances that could legitimately be described as

primarily of public concern." Tripp I, 2004 U.S. Dist. LEXIS 25124

at *22 n.8. However, "'an employee cannot transform a personal

conflict into an issue of public concern simply by arguing that

individual concerns might have been of interest to the public under

different circumstances,' . . . [and] the factual record in this

case does not present the kind of content, form and context that

should form the basis of a First Amendment claim." Id. (quoting

Markos v. City of Atlanta, 364 F.3d 567, 570 (5th Cir. 2004)).

Rather, we think that the district court accurately

characterized Tripp's speech in its context:

[T]he real dispute [was that] Tripp was upset
that Cole was poking his nose into police
business. . . . Although the 'big picture'
might be newsworthy, the actual content, form
and context of Tripp's speech reflect that
Tripp was speaking primarily as an employee
concerned about how he was going to perform
his job with regard to the Thurston summons
and about private perceptions that directly
related to his personal working relationships,
not as a concerned public citizen speaking
about matters predominantly of public concern.

-14-
Tripp I, 2004 U.S. Dist. LEXIS 25124 at *20-21. For these reasons,

Tripp's speech did not address a "matter of public concern," and

summary judgment was proper on the First Amendment claim.

Affirmed.

-15-