Chamberlin v. Town of Stoughton

United States Court of Appeals
For the First Circuit

No. 08-1289

DAVID CHAMBERLIN; FRANCIS WOHLGEMUTH,

Plaintiffs, Appellants,

v.

TOWN OF STOUGHTON; SCOTT CARRARA, Individually and as a member of
the Board of Selectmen; RICHARD LEVINE, Individually and as a
member of the Board of Selectmen; JOHN KOWALCZYK, Individually
and as a member of the Board of Selectmen; CHRISTOPHER CIAMPA,

Defendants, Appellees,
__________

BOARD OF SELECTMEN OF THE TOWN OF STOUGHTON; MANUEL CACHOPA,

Defendants.
____________________

No. 08-1529

DAVID CHAMBERLIN; FRANCIS WOHLGEMUTH,

Plaintiffs, Appellants,

v.

BOARD OF SELECTMEN OF THE TOWN OF STOUGHTON; MANUEL CACHOPA,

Defendants, Appellees,
__________

TOWN OF STOUGHTON; SCOTT CARRARA, Individually and as a member of
the Board of Selectmen; RICHARD LEVINE, Individually and as a
member of the Board of Selectmen; JOHN KOWALCZYK, Individually
and as a member of the Board of Selectmen; CHRISTOPHER CIAMPA,

Defendants.
 APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Gajarsa* and Lipez,

Circuit Judges.

Diane M. Murphy, Joseph M. Mahaney and McLaughlin, Richards,
Mahaney, Biller & Woodyshek, LLP on brief for appellants.
Joseph L. Tehan, Jr., Jackie Cowin and Kopelman and Paige,
P.C. on brief for defendant, appellee Town of Stoughton.
Gareth W. Notis, Jennifer S. Bunce and Morrison Mahoney LLP on
brief for defendants, appellees Scott Carrara, Richard Levine and
John Kowalczyk.
Stephen C. Pfaff and Louison, Costello, Condon & Pfaff on
brief for defendants, appellees Manuel Cachopa and Christopher
Ciampa.

April 1, 2010

*
Of the Federal Circuit, sitting by designation.
 BOUDIN, Circuit Judge. This case began with a lawsuit by

two Stoughton, Massachusetts, police officers alleging that town

officials and two officers who served as chiefs of police of the

town retaliated against the plaintiff officers for cooperating with

an investigation into police misconduct and for disclosing a

hostile work environment at the police department. Following

grants of summary judgment and directed verdicts by the district

court, and a jury verdict on several remaining claims against one

of the defendants, the defendants prevailed on each and every

claim. The plaintiff officers now appeal.

Stoughton ("the Town") is governed by a board of

selectmen ("the Board") that appoints both the town manager and the

chief of police. In June 2004, the then board members, by a

divided vote, failed to reappoint the then chief of police, Manuel

Cachopa. David Chamberlin, until then serving as one of several

police lieutenants, had earlier submitted his retirement papers

effective in July 2004, but he agreed at the Board's request to

serve as interim chief and withdrew his retirement application. He

held the interim chief position until the Board hired a replacement

chief, Joseph Saccardo, in October 2004 and then reverted to his

lieutenant position.

In July 2004, Chamberlin learned of allegations that

several police officers, including Cachopa, had engaged in criminal

misconduct. Chamberlin informed the Norfolk County District

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Attorney, who appointed a special prosecutor in August. During

this period Chamberlin met several times with the district attorney

and the special prosecutor, joined on one occasion by a lieutenant,

Francis Wohlgemuth. In October, at the special prosecutor's

request, a number of officers were placed on leave, including

Cachopa. A grand jury began to inquire into the matter and both

Chamberlin and Wohlgemuth testified before the grand jury in late

2004.

After Cachopa was denied reappointment, a recall campaign

was begun to remove the board members who had opposed him. In the

town election held in November 2004, those members were replaced by

two new selectmen, Richard Levine and John Kowalczyk. In mid-

November, the new board ordered the suspended officers reinstated

and then reappointed Cachopa as chief on November 24. On his

return Cachopa immediately made Christopher Ciampa, a sergeant and

strong supporter of Cachopa, his effective deputy, promoting him

over the heads of the serving lieutenants. In March 2005, Cachopa

and two other officers were indicted, and the Board then made

Ciampa acting police chief.

In September 2006, Chamberlin and Wohlgemuth filed suit

in federal district court against the Town, the Board, Cachopa,

Ciampa, and three selectmen (who also had supported Cachopa):

Levine, Kowalczyk and Scott Carrara. The gist of the complaint was

that Cachopa and Ciampa, aided by the Board, had carried on in 2004

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and 2005 a systematic campaign of retaliatory harassment against

Chamberlin, Wohlgemuth and other officers who had either opposed

Cachopa or remained neutral in the recall campaign. One of those

other officers, Sergeant Robert Welch, brought his own suit against

Cachopa, Ciampa and other defendants. See Welch v. Ciampa, 542

F.3d 927 (1st Cir. 2008) (reversing and remanding in part the

dismissal of his claims).

Some of the actions alleged by Chamberlin and Wohlgemuth

were petty but a few were more serious; collectively, they arguably

alleged enough harm to constitute a viable claim--assuming that the

actions were taken for a purpose unlawful under federal or state

law. They included inconvenient changes of office and shift for

the two plaintiffs, depriving Wohlgemuth of access to many offices

in the station, unjustified reprimands, imposing limitations on the

plaintiffs' preexisting authority, requiring them to wear blue

shirts instead of senior officer white and inflicting inappropriate

medical and other examinations on Chamberlin.

The connection of the defendants other than Cachopa and

Ciampa with these events was left obscure in the complaint save for

one episode involving other town officials. In January 2005, the

Town threatened to sue Chamberlin if he neither retired nor

returned retirement incentive pay (allegedly totaling $21,000)

which he had received after he initially agreed to retire. The

Town did in fact bring such a suit, abandoning it when Chamberlin--

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out on vacation and then sick leave since November 2004--retired at

the end of March 2005.

The complaint alleged that the claimed harassment was

retribution for a set of specific actions by Chamberlin and

Wohlgemuth comprising speech assertedly protected under federal or

state law or both, specifically: (1) requesting in July 2004 that

the town manager investigate the operation of the department,

including unequal discipline for those supporting and opposing

Cachopa; (2) cooperating with the special prosecutor and grand jury

in fall and winter 2004; and (3) advising the town manager by

letters of a hostile work environment at the police department in

December 2004.

Several different statutes were invoked--the

Massachusetts Whistleblower Statute, Mass. Gen. Laws ch. 149, §

185(b) (2009), the Massachusetts Civil Rights Act, id. ch. 12, §

11I, and the federal civil rights statute, 42 U.S.C. § 1983 (2006),

based on the First Amendment--together with a charge of abuse of

process relating to the Town's lawsuit. In addition to this final

common law claim, each of three categories of protected speech was

made the subject of several different statutory claims and each was

stated separately for each plaintiff--resulting in 17 counts.

Different defendants appeared in the various counts.

Thereafter the case was narrowed in steps beginning with

the district court's dismissal of the Board. Early on, the Board

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was dismissed on the ground that it was not subject to suit under

the Whistleblower Statute or § 1983 and, although the district

court's order does not explain why, dismissal of the Massachusetts

Civil Rights Act claim against the Board was also granted;

plaintiffs make no mention of this lack of explanation on their

present appeal so we need not pursue that issue.

On November 27, 2007, the court granted summary judgment

for the defendants on a number of counts, qualifying the order a

week later. The remaining claims, then set for trial, were a

single count under the Massachusetts Civil Rights Act--Wohlgemuth's

claim against Cachopa based on his hostile work environment letter

to the town manager--the Whistleblower statute claims of both

plaintiffs against the Town, and their § 1983 claims based on their

hostile work environment letters and of Chamberlin based on his

grand jury testimony and cooperation with the special prosecutor.

In the first trial, a mistrial was declared as to all

claims against Cachopa after plaintiffs' counsel improperly

referred to Cachopa's indictment. Then at the close of the

plaintiffs' case, the district court, acting from the bench,

granted defendants' oral motions for a directed verdict as to all

claims against the remaining defendants. Asked to explain the

basis for the directed verdict, the district court invoked (with

one exception) "all the reasons argued by the defense counsel and

as expressed in their brief"--a category containing a number of

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disparate contentions.1 The district court denied the plaintiffs'

motion for reconsideration and motion for a new trial.

A second trial then ensued on the remaining claims

against Cachopa--plaintiffs' § 1983 claims based on the December

hostile work environment letters, Wohlgemuth's Massachusetts Civil

Rights Act claim based on his letter, and Chamberlin's § 1983 claim

based on cooperation with the special prosecutor and grand jury--

and the jury found in Cachopa's favor on all of the claims. Before

us now are appeals relating to the summary judgment and the

district court's rulings in both trials. Denial of a separate new

trial motion in the second trial was appealed too late and is not

before us.

Plaintiffs' joint principal brief asserts that the

district court erred first by entering summary judgment on

specified claims prior to the first trial and directing verdicts in

that trial and second by making a series of errors in the course of

the second trial. Our review of the directed verdicts is de novo,

Ahern v. Scholz, 85 F.3d 774, 793 (1st Cir. 1996); review as to

alleged trial errors depends upon the character and context of the

1
Those grounds included a lack of compensable damages, coupled
with a lack of evil motive or intent sufficient to award punitive
damages; the fact that many of the alleged retaliatory acts took
place prior to the December hostile work environment letters; a
lack of knowledge by the defendants of the plaintiffs' grand jury
testimony; a lack of retaliatory acts by the Selectmen or Ciampa;
and a lack of a policy or custom of retaliation by the Town. The
district court said, however, that it did not adopt in full the
defendants' reading of current First Amendment doctrine.

-8-
ruling, e.g., McDonough v. City of Quincy, 452 F.3d 8, 19 (1st

Cir. 2006) (exclusion of evidence reviewed for abuse of

discretion); O'Rourke v. City of Providence, 235 F.3d 713, 736 (1st

Cir. 2001) (jury instructions reviewed for plain error where party

has not timely objected).

The most far-reaching of the issues centers around First

Amendment protection vel non for plaintiffs' statements, and two

sets of claims that depend on that premise: the § 1983 claims and

the parallel claims under the Massachusetts Civil Rights Act (which

the parties treat as subject to the same analysis, Hosford v. Sch.

Comm. of Sandwich, 659 N.E.2d 1178, 1180 n.5 (Mass. 1996)). To

make out a free speech claim under § 1983, the plaintiffs "must

show that [they] engaged in constitutionally protected conduct and

that this conduct was a substantial or motivating factor in the

alleged adverse employment action." Welch, 542 F.3d at 936.

First Amendment claims of this kind have been

conventional since the Supreme Court developed such a cause of

action in the 1960s,2 and police officers who voice concerns about

misconduct and suffer for it have been plaintiffs in a number of

such cases. See, e.g., Tripp v. Cole, 425 F.3d 5 (1st Cir. 2005);

Wagner v. City of Holyoke, 404 F.3d 504 (1st Cir.), cert. denied,

2
See, e.g., Connick v. Myers, 461 U.S. 138 (1983); Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977);
Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563
(1968).

-9-
546 U.S. 977 (2005); Bennett v. City of Holyoke, 362 F.3d 1 (1st

Cir. 2004); Dirrane v. Brookline Police Dep't, 315 F.3d 65 (1st

Cir. 2002). It is unclear how far such claims can survive the

Supreme Court's recent decision in Garcetti v. Ceballos, 547 U.S.

410, 421 (2006), which ruled that “when public employees make

statements pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from employer

discipline.”

Virtually all of the "protected conduct" relied on by the

plaintiffs was speech-related activity that arguably was done

"pursuant to their official duties"; but it is unclear how far the

Supreme Court intends to carry Garcetti, and the Massachusetts

Whistleblower Statute offers quite similar protection unaffected by

Garcetti.3 Although the First Amendment (implemented through §

1983 or the Massachusetts Civil Rights Act) differs from the

Whistleblower Statute in many incidents, the core difficulty in

this case is common to both: the difficulty of proving that Cachopa

3
The Whistleblower Statute imposes liability on the state,
local towns, and other public entities that retaliate against an
employee through "adverse employment action" for specified conduct,
Mass. Gen. Laws ch. 149, § 185(a), (b); and the protected conduct,
subject to certain conditions, includes--to paraphrase two of the
subsections that follow: (1) disclosing to a supervisor or "public
body" activity by the employer that the complaining employee
believes to be unlawful or dangerous; and (2) providing information
or testimony to a "public body" conducting an investigation into
unlawful conduct or a threat to safety. Id. ch. 149, § 185(b).

-10-
and Ciampa took various of their actions in order to retaliate for

protected activity.

The Stoughton Police Department was surely in turmoil in

the 2004-2005 period. In a relatively brief window, the chief

position was held by Cachopa, Chamberlin, Saccardo, Cachopa again

and then Ciampa who was closely allied with Cachopa. Cachopa was

himself ultimately convicted in 2009 of being an accessory after

the fact to more serious misconduct of which another officer

(Sergeant David Cohen) was convicted.4 Officers who had not

supported Cachopa or the recall campaign, including Chamberlin and

Wohlgemuth, seem to have been subject to harassment after Cachopa

regained authority and during Ciampa's tenure.

But it remained the plaintiffs' task to establish that

Cachopa, Ciampa or both took adverse action against one or both of

the plaintiffs motivated at least in part by their protected

conduct, and in this respect the plaintiffs' case rested primarily

on soft inference as against flat denials by both the defendant

officers. In particular, plaintiffs had no direct proof that

either of the two defendant officers knew that Chamberlin had

instigated the special prosecutor's inquiry or that either

4
The Massachusetts Supreme Judicial Court later reversed
Cohen's conviction and remanded the case for a new trial, on the
grounds that the trial court had violated Cohen's right to a public
trial by restricting access to the courtroom during jury selection.
Commonwealth v. Cohen, 919 N.E.2d 628 (Mass. 2010).

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plaintiff had testified to the grand jury, and both defendants

denied knowing about who testified before the grand jury.

Further, certain of the small administrative steps

complained of by the plaintiffs could be taken as hostile or

defended as consistent with regulations, so it is not easy to work

backwards and conclusively infer a malign motive from the acts

themselves. Other problems included the uncertainty as to

significant compensable harm, lack of medical evidence of emotional

harm, and the fact that Chamberlin was on leave during most of the

events. This, then, looks like a suitable case for a jury to sort

out cause, motive and effect; and when the jury got the claims

against Cachopa, it rejected them on the merits.

It is true that the district court let the case against

Cachopa go to the jury in the second trial while it directed a

verdict in Ciampa's favor in the first. But Cachopa was the chief

when the principal incidents occurred; Ciampa was his creature as

his effective deputy promoted to that spot over the heads of the

lieutenants; and the most plausible case against both rested on the

notion that they were cooperating to inflict petty misery on the

plaintiffs, one of whom had supplanted Cachopa and the other of

whom had failed to support him.

The jury in the second trial was allowed to consider

practically all of the claimed acts of retaliation. A number of

these acts were done by Cachopa directly (changing the plaintiffs'

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shift and shirt colors; appointing Ciampa as executive officer over

the heads of the lieutenants and reducing the plaintiffs'

responsibilities; sending Chamberlin letters demanding doctor's

notes). Others were, by Cachopa's own admission, done at his

direction by his deputy, Ciampa (moving Chamberlin and Wohlgemuth

to a different office; imposing various restrictions on Chamberlin

for not requalifying with his firearm). A few acts were presented

to the jury without clear evidence as to whether Cachopa or Ciampa

was the primary actor (changing plaintiffs' training locations).

In other words, for almost all the acts of alleged

retaliation, Cachopa was either the principal actor or at least as

culpable as Ciampa. Nonetheless, the jury found that Cachopa did

not retaliate against the plaintiffs for protected conduct. The

jury's determination that Cachopa was not liable "fatally

eviscerated" the plaintiffs' claims against Ciampa and the

defendants from the Town. Earle v. Benoit, 850 F.2d 836, 845 (1st

Cir. 1988).5 Earle is not conclusive--the fatal determination

there was in the same trial--but the principle is the same, namely,

5
Earle is far from the only example. See, e.g., Goulet v. New
Penn Motor Express, Inc., 512 F.3d 34, 43 (1st Cir. 2008); Senra v.
Cunningham, 9 F.3d 168, 174 (1st Cir. 1993); Dixon v. City of
Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990); James v. Nico Energy
Corp., 838 F.2d 1365, 1373 (5th Cir. 1988); Mello v. K-Mart Corp.,
792 F.2d 1228, 1231 (1st Cir. 1986); Juneau Square Corp. v. First
Wisconsin Nat'l Bank, 624 F.2d 798, 814 n.17 (7th Cir. 1980);
Janich Bros., Inc. v. American Distilling Co., 570 F.2d 848, 855
(9th Cir. 1977).

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that courts do not have further proceedings based on harmless

errors.

Appellate review after the grant of a directed verdict

usually involves a measure of speculation about how the jury would

have decided if a directed verdict had been denied; but no

speculation is needed here because the same claims were effectively

tried and lost in the second case. This is a rare occurrence and

perhaps without precedent; but that should hardly prevent us from

exercising common sense. Yes, the Seventh Amendment provides for

jury trials; but, directed verdicts and harmless error are

established qualifications (so too are waiver, stipulation and

estoppel). Whether the case against Ciampa was fairly tested by

the second trial is a separate question.

A few alleged retaliatory acts--for which Ciampa and the

Town were the primary actors--were not squarely presented to the

jury in the second trial. After Ciampa became acting chief, he

directed Chamberlin to undergo a medical examination to determine

his fitness to return to duty; issued warnings to Wohlgemuth for

comments made to other officers; and sent Wohlgemuth a letter about

sick time abuse. These incidents not only fail as a retaliation

claim, cf. Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218

(1st Cir. 1989) (en banc), but add no real weight to the more

serious incidents that occurred while Cachopa was chief.

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 Thus, the medical examination was required for officers

out of work for five days or more due to off-duty injury or

illness, and the dispute centered around a possible conflict of the

policy with the union contract; Wohlgemuth did not seriously deny

making some negative comments about other officers; and whether he

marginally exceeded his sick time is unclear even after reading

relevant testimony. By contrast, the list of alleged wrongful acts

occurring while Cachopa was chief is far longer and included at

least a few of some substance.6 This is presumably why the court

did not direct a verdict for Cachopa; even so, Cachopa prevailed.

As for the Town, it was within its rights in filing suit

against Chamberlin over his retirement incentive. Chamberlin did

not retire as promised for whatever reason, and the Board could

legitimately seek to enforce the agreement; engaging in protected

conduct did not insulate Chamberlin from these consequences. See

Blackie v. Maine, 75 F.3d 716, 723-24 (1st Cir. 1996). According

to Chamberlin's own testimony, the Board's desire that he retire

predated much of the arguably protected conduct.

Nowhere do plaintiffs explain how they could have

prevailed against Ciampa when the jury rejected counterpart claims

6
The ones of some arguable substance included Cachopa's
altering of Chamberlin and Wohlgemuth shifts; Cachopa's appointment
of Ciampa; and several other actions taken by Ciampa but seemingly
at Cachopa's direction: a requirement that Chamberlin requalify to
carry firearms and confinement to station until this occurred; a
reduction in Wohlgemuth's duties; and an official reprimand in
Chamberlin's personnel file.

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against Cachopa. Instead, they argue that the second trial was

itself flawed: of their twelve claims in this court, eight assert

errors in the second trial. Of course, the outcome of the second

trial could not insulate defendants if it were itself flawed; but

a number of the claims involve trial-court judgment calls about

which little need be said and the most important of the challenged

rulings--discussed next--do not comprise reversible error.

Most important, plaintiffs argue that the district court

erred by excluding a report that the Town commissioned from

attorney Marc Terry (the "Terry Report") in response to the

plaintiffs' letters alleging a hostile work environment. Terry

interviewed a number of witnesses regarding the plaintiffs'

allegations and concluded that Cachopa had retaliated against the

plaintiffs both for their cooperation with the grand jury

investigation and for failing to support Cachopa's effort to remain

as chief.

In excluding the report, the district court stated, "I

think given its timing and given the fact that it was requested in

July of 2004 and we don't get it until October of 2005 . . . .

[and] given its level of generality, I think it's unduly

prejudicial." The reference to timing is unclear to us and the

reference to generality is perhaps confusing; the report was fairly

detailed as to the underlying events. But in all likelihood the

district court meant that the utility of the report to plaintiffs

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was its final assessment, which their brief underscores, that

Cachopa was not credible in his denials as to what he did and why.

Cachopa's credibility as to what he did and why was

central to the second trial, but the underlying evidence of events

bearing on that was available to the plaintiffs. To superimpose

Terry's evaluation on what the jury was expected to decide served

no useful purpose: it was the jury's task to decide whether to

believe Cachopa. Terry was not qualified or offered as an expert

on "credibility"; and to treat his independent judgment as evidence

would simply weight one side of the scale to Cachopa's

disadvantage.

It thus does not matter whether Terry's report avoids a

hearsay objection by virtue of Rule 803(8)(c) or otherwise;7 Rule

403 independently permits exclusion of evidence that is unduly

prejudicial and to exclude the report on this ground was not an

abuse of discretion. This would be a different case if plaintiffs

were pointing us to raw facts that Terry had uncovered and for

which evidence was not readily available to plaintiffs themselves.

7
Federal Rule of Evidence 803(8)(c) creates a hearsay
exception for reports of "public offices or agencies, setting forth
. . . factual findings resulting from an investigation made
pursuant to authority granted by law, unless the sources of
information or other circumstances indicate lack of
trustworthiness." The plaintiffs also cite Rule 801(d)(2)(C),
which covers statements by authorized persons, and Rule
801(d)(2)(D), which covers statements by agents.

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 The plaintiffs also argue that the district court erred

by refusing to allow them to examine Cachopa over his role in the

initial investigation of Cohen, whose conduct was the subject of

the later inquiry by the special prosecutor and grand jury

investigation. The plaintiffs claim that Cachopa opened the door

to the issue by testifying that he himself had brought the matter

before the district attorney in 2003, and that they were denied the

chance to demonstrate fully Cachopa's misconduct in this matter.

However, the transcript indicates that the district court

did not flatly bar the plaintiffs from examining Cachopa on the

Cohen investigation. Rather, Cachopa was the first witness to

testify in the case, and the district court seemingly believed that

the jury should first be apprised of any wrongs that Cachopa did to

the plaintiffs before digressions into Cachopa's role in the Cohen

matter. The court ruled that "[y]ou better go to something that's

relevant and then you can come back to this. You can come back to

it . . . if it's relevant." The plaintiffs tried again several

questions later, in response to which the court sustained an

objection "without prejudice to your returning to it."

So far as appears, the plaintiffs made no effort to

question Cachopa on the Cohen matter again. The Cohen matter, and

Cachopa's conduct in relation to it, was arguably "relevant" under

Rule 401 of the Federal Rules of Evidence--for example, because it

bore on his motivation to retaliate against Chamberlin for

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prompting an inquiry into the matter. But the district court

"enjoy[s] wide latitude in matters concerning the ordering of proof

and the presentation of evidence," Morales Feliciano v. Rullan, 378

F.3d 42, 57 (1st Cir. 2004), cert. denied, 543 U.S. 1054 (2005),

and plaintiffs were free to return to the Cohen matter after they

adduced evidence that Cachopa had taken steps against the

plaintiffs for which his motive was relevant.

The plaintiffs next argue that the district court erred

by instructing the jury to determine whether the plaintiffs'

December 7 letters alleging a hostile work environment were

protected conduct under the "matters of public concern" and

interest-balancing tests used by the Supreme Court, at least prior

to the exception now carved out by Garcetti. Whether speech is

constitutionally protected is ordinarily a matter for the judge,

not the jury;8 but the plaintiffs did not object to this aspect of

the jury instructions and so the objection is waived, absent plain

error--a stiff test in civil cases, see Diaz-Seijo v.

Fajardo-Velez, 397 F.3d 53, 56 (1st Cir. 2005), which plaintiffs do

not meet.

The plaintiffs also challenge the district court's

failure to instruct the jury that the plaintiffs' cooperation with

8
Connick, 461 U.S. at 148 n.7 ("The inquiry into the protected
status of speech is one of law, not fact."); Curran v. Cousins, 509
F.3d 36, 45 (1st Cir. 2007) ("[I]t is the judge who decides as a
matter of law the issues in the two steps Garcetti identifies.");
Lewis v. City of Boston, 321 F.3d 207, 219 (1st Cir. 2003).

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the special prosecutor was protected under the First Amendment.

As two senior officers in the police department, it was within the

scope of both plaintiffs' duties to cooperate with the district

attorney and the special prosecutor in investigating alleged

criminal activity within the police department. Wohlgemuth shared

responsibility for internal investigations, and Chamberlin had

launched the investigation as part of his duties as chief. The

district court correctly ruled that this conduct was not protected

by the First Amendment under Garcetti.

We are not suggesting that Garcetti applies every time a

police officer has conversations with a prosecutor. What

constitutes official duties will necessarily vary with the

circumstances including the rank of the officer, his areas of

responsibility and the nature of the conversations; but in this

case the facts just summarized are sufficient. The district court

also instructed the jury that cooperation with the grand jury was

protected speech; but this instruction, being favorable to

plaintiffs, is not before us and need not be addressed.

The district court also told the jury that the plaintiffs

presented "no medical testimony" that distinguished emotional

distress based on "protected speech from the other divisiveness in

the department," and "you need such testimony." No per se rule

requires expert testimony for an award of compensatory damages

based on emotional distress, e.g., McDonough, 452 F.3d at 22, but

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if there was error, it was harmless. The jury was told to award at

least nominal damages if a protected speech violation occurred and

did not do so--so the predicate for any damages was absent.

The remaining claims of trial error require no detailed

discussion. The plaintiffs are wrong that the district court

precluded proof of the shift changes and shirt color issue pressed

by plaintiffs; the district court's restrictions on time allowed to

each side were within the district court's authority; and a

complained of comment by the district court--itself somewhat

opaque--is not a basis for a new trial.

The judgment is affirmed. Each side shall bear its own

costs on this appeal.

It is so ordered.

-Dissenting Opinion Follows-

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 LIPEZ, Circuit Judge, dissenting in part. Although the

majority affirms the district court's grant of a directed verdict9

in favor of Ciampa, it does not do so on the familiar ground that

no reasonable jury could find Ciampa liable for retaliation based

on the evidence presented at the first trial. Instead, it

concludes that any error in the granting of the directed verdict

for Ciampa was "harmless" because of the rejection of plaintiffs'

claims against Cachopa by a different jury in a subsequent trial.

In my view, this harmless error analysis is unprecedented and

unsupportable. Therefore, I respectfully dissent from the decision

to affirm the directed verdict in favor of Ciampa.10

I.

Because it is important for understanding the flaws in

the majority's harmless error analysis, I briefly summarize the

relevant procedural history. In January 2008, plaintiffs proceeded

to trial on their retaliation claims against Ciampa, Cachopa, and

other defendants. Early in that trial, the court granted a

9
We note that Federal Rule of Civil Procedure 50 was amended
in 1991, and "the term judgment as a matter of law was adopted to
refer to preverdict (directed verdict) and postverdict (judgment
notwithstanding the verdict) motions with a terminology that does
not conceal the common identity of two motions made at different
times in the proceeding." Coastal Fuels of P.R., Inc. v. Carribean
Petroleum Corp., 79 F.3d 182, 199 n.14 (1st Cir. 1996) (internal
quotation marks omitted). We refer to the district court's ruling
as a directed verdict to remain consistent with the majority's
terminology.
10
I join the majority's decision in all other respects.

-22-
mistrial on all claims against Cachopa. Plaintiffs continued to

present evidence against the remaining defendants. At the close of

their case, the court granted a directed verdict on all claims

against Ciampa and the remaining defendants. Following the court's

denial of plaintiffs' motion for reconsideration and for new trial,

plaintiffs appealed. Several weeks later, plaintiffs proceeded to

trial on their retaliation claims against Cachopa. Plaintiffs'

allegations against Cachopa, although overlapping with their

allegations against Ciampa, were not identical. The jury returned

a verdict for Cachopa, and plaintiffs appealed from that verdict.

Plaintiffs' two appeals, from the dispositions in the first and

second trials, were later consolidated in the proceeding now before

us.

II.

We review de novo the district court's decision to grant

a directed verdict. Acevedo-Feliciano v. Ruiz-Hernández, 447 F.3d

115, 121 (1st Cir. 2006). The district court could properly grant

a directed verdict for Ciampa at the close of plaintiffs' case in

the first trial only if, based on the evidence presented at the

time of its ruling, "a reasonable jury would not have a legally

sufficient evidentiary basis to find for [plaintiffs]." Fed. R.

Civ. P. 50(a). In our review of the grant of a directed verdict,

we apply the same standard as the district court. Id. We must

"examine the evidence and all fair inferences in the light most

-23-
favorable to the plaintiff[s] and may not consider the credibility

of witnesses, resolve conflicts in testimony, or evaluate the

weight of the evidence." Id. (internal quotation marks omitted).

Viewing the evidence in this light, we may uphold the directed

verdict for Ciampa only if no reasonable jury could find defendant

liable based on the evidence presented by plaintiffs at the first

trial. See Acevedo-Feliciano, 447 F.3d at 121.

In order to prevail on their retaliation claims,

plaintiffs had to show that they "engaged in constitutionally

protected conduct and that this conduct was a substantial or

motivating factor in the alleged adverse employment action." Welch

v. Ciampa, 542 F.3d 927, 936 (1st Cir. 2008). The majority

acknowledges that plaintiffs engaged in arguably constitutionally

protected conduct, that the adverse actions by Cachopa and Ciampa,

viewed collectively, were arguably harmful enough to support a

viable claim, that the parties proffered conflicting evidence as to

motive, and that this was "a suitable case for the jury to sort out

cause, motive and effect." However, having recognized these

central disputes suitable for jury determination, the majority does

not then evaluate the directed verdict on the merits, assessing

whether a reasonable jury could find Ciampa liable based on the

evidence presented at the first trial. Instead, the majority looks

to the second trial, in which Ciampa was not a party, and views

that trial as a proxy for what would have happened if plaintiffs'

-24-
claims had gone to the jury in the first trial. The majority

concludes that even if the district court erred in directing a

verdict for Ciampa, any error was harmless, because similar

retaliation claims against Cachopa went to a jury in the second

trial and that jury ultimately found in his favor. None of the

parties raised this harmless error argument in their briefing.11

That is not surprising. There is no precedent for such an

application of harmless error.

As a general matter, under the harmless error rule, we

disregard "errors or defects which do not affect the substantial

rights of the parties." 28 U.S.C. § 2111; see also Fed. R. Civ. P.

61. In the ordinary harmless error case, an error made in the

proceedings leading up to the final judgment -- for example, an

erroneous evidentiary ruling -- is deemed harmless to the ultimate

disposition.

11
Instead, defendants contended in their briefing, in the
traditional manner, that no reasonable jury could find for
plaintiffs on their retaliation claims based on the evidence
presented at the first trial, and therefore the directed verdict
was properly granted. Defendants contended, inter alia, that there
was no evidence Ciampa or Cachopa knew that plaintiffs cooperated
with the special prosecutor or testified before the grand jury, and
that any retaliation that occurred after plaintiffs' December 2004
hostile work environment letters did not rise to the level of an
adverse employment action. The only suggestion by defendants of an
argument even resembling the majority's harmless error analysis is
their statement, in a footnote, that "the jury verdict in Cachopa's
favor in Trial Two further supports the reasonableness of the
Court's entry of a Directed Verdict in Trial One."

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 In certain narrow factual circumstances, courts have

concluded that an error in the final disposition -- for example, an

erroneous directed verdict -- was harmless in light of subsequent

proceedings. For example, in Earle v. Benoit, 850 F.2d 836, 840

(1st Cir. 1988), the primary authority relied on by the majority

for its harmless error analysis, the plaintiff, Earle, alleged that

defendant police officers had conspired to deprive him of his civil

rights by subjecting him to unlawful arrest, illegal searches,

excessive force, and other harassment. At the close of Earle's

case before the jury, the court directed a verdict in favor of

defendants on Earle's conspiracy claim, but permitted his other

claims to go to the jury. Id. at 837. That jury ultimately

returned a verdict for defendants, responding negatively to special

jury questions regarding whether the alleged unlawful arrest,

illegal searches, and use of excessive force violated Earle's civil

rights. Id. at 845.

The Earle court concluded that the directed verdict was

erroneously granted because "there was sufficient circumstantial

evidence (had the jury found in Earle's favor on the substantive

claims) for a reasonable jury to have inferred a conspiracy." Id.

at 844. Nevertheless, this error was harmless because a § 1983

conspiracy requires an "actual deprivation of a right secured by

the Constitution and laws," and therefore the jury's ultimate

rejection of Earle's underlying civil rights claims "fatally

-26-
eviscerated Earle's conspiracy claim." Id. at 845 (internal

quotation marks omitted).12 The court reasoned that, in a real and

practical sense, even if the district court had permitted Earle's

conspiracy claim to go to the jury, that claim would have been

rejected by the jury. Given the jury's findings on Earle's claims

of significant civil rights violations, the jury could not have

also found defendants liable for a civil rights conspiracy. Id.

Moreover, "as a practical matter," in light of the jury's

consistent rejection of Earle's civil rights claims, it was

"inconceivable" that "the jury would have found for plaintiff on

the closely related conspiracy charge." Id.; see also Goulet v.

New Penn Motor Express, Inc., 512 F.3d 34, 43 (1st Cir. 2008)

(finding wrongly directed verdict harmless "where the jury's

ultimate verdict necessarily defeats the claim" on which directed

verdict was erroneously granted (emphasis added)).13

12
The court acknowledged that Earle provided evidence of other
more trivial confrontations with police, such as being stopped for
alleged traffic violations, but concluded that no jury could have
found that any of these incidents constituted a deprivation of a
constitutional right, as required for a § 1983 civil rights
conspiracy. Id. at 845.
13
My research has uncovered a smattering of other cases, from
our own circuit and others, applying harmless error analysis to a
directed verdict. Like Earle, these decisions have found harmless
error where the jury verdict "necessarily defeats the claim" on
which a directed verdict was incorrectly granted. Goulet, 512 F.3d
at 43; see id. at 42-43 (concluding that any error in directed
verdict for employer on plaintiff's hybrid Labor Management
Relations Act § 301 claim was harmless, where the jury's ultimate
rejection of plaintiff's § 301 claim against union was "fatal" to
claim against employer); see also, e.g., Uphoff-Figueroa v.

-27-
 As I explain more fully below, this case is

fundamentally different from Earle for two reasons. First, the

directed verdict for Ciampa and the jury verdict for Cachopa

occurred not in a single trial, but in two separate trials that

culminated in two separate appeals. Second, given the nature of

plaintiffs' claims and the particular facts of this case, the jury

verdict for Cachopa did not necessarily defeat plaintiffs' claims

against Ciampa.

III.

In Earle, as noted, the directed verdict and the ultimate

jury verdict occurred in the course of a single trial proceeding.

Thus, the Earle court concluded that given the jury's findings on

Alejandro, No. 08-1921, 2010 WL 728784, at *7 (1st Cir. Mar. 4,
2010) (holding that even if court erred in directing verdict for
employer on plaintiff's state law retaliation claim, it was
harmless given the jury's finding for employer on "identical"
federal law retaliation claim); Snyder v. Ag Trucking, Inc., 57
F.3d 484, 491 (6th Cir. 1995) (holding that directing a verdict for
employer on claim for willful violation of ADEA was harmless error
because, given jury's rejection of underlying ADEA claim, it "could
not" have found willful violation of ADEA); Dixon v. City of
Lawton, Okla., 898 F.2d 1443, 1449 (10th Cir. 1990) (finding any
error in failing to submit § 1983 claim to jury harmless, given
jury's conclusion that no defendants violated plaintiff's
constitutional rights by use of excessive force); Mello v. K-Mart
Corp., 792 F.2d 1228, 1231 (1st Cir. 1986) (concluding that error
in directing verdict for manufacturer was harmless where jury
ultimately rejected product liability claims against vendor, and in
reaching that verdict jury necessarily had to find that there was
no manufacturing defect); Cenco Inc. v. Seidman & Seidman, 686 F.2d
449, 453 (7th Cir. 1982) (holding that any error in directing
verdict for defendant on plaintiff's claim for conspiracy to
defraud was harmless, given that jury ultimately rejected
underlying fraud claim).

-28-
Earle's underlying civil rights claims, that jury could not have

rationally found for Earle on his conspiracy claim. Here, of

course, the directed verdict on plaintiffs' claims against Ciampa

and the jury's rejection of plaintiffs' claims against Cachopa

occurred during two separate trial proceedings, which culminated in

separate dispositions and separate appeals. In the first trial,

following the court's grant of a mistrial on all claims against

Cachopa, the court directed a verdict on all remaining claims

against Ciampa and the other defendants. Thus, none of plaintiffs'

claims reached a jury in the first trial. In the second trial,

plaintiffs' claims against Cachopa were tried by a jury, and that

jury found for Cachopa.

Although the majority glosses over this somewhat odd

procedural history, it cannot be ignored. Here, unlike in Earle

and similar cases, we cannot say with any certainty how the first

jury would have decided plaintiffs' claims against Ciampa if the

directed verdict had not been granted, because that jury made no

findings on any of plaintiffs' claims. Without any findings by the

first jury, we have no basis for concluding that the first jury

could not have rationally found for plaintiffs on their claims

against Ciampa. We cannot say, as the Earle court did, that if the

district court had not granted the directed verdict, the jury

necessarily would have rejected plaintiffs' claims against Ciampa.

-29-
 My concerns with the majority's unique harmless error

analysis are further heightened by its constitutional implications.

Under the Seventh Amendment, plaintiffs have a right to a jury

trial on their claims for legal relief under § 1983.14 City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709-10

(1999). Of course, it is well-established that the proper grant of

a directed verdict does not offend a party's Seventh Amendment

right to a jury trial. Galloway v. United States, 319 U.S. 372,

389 (1943); 9B Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 2522 (3d ed. 2008). The directed verdict

procedure is constitutional because a properly granted directed

verdict "only deprives the losing party of the possibility of an

unreasonable verdict, a possibility not protected by the

Constitution." Wright & Miller, supra, § 2522. The analysis

applied in Earle, although styled as a harmless error analysis, is

a variant on this principle. The Earle court found that, in light

of the jury's finding on the underlying civil rights claims, the

jury could not rationally find for plaintiff on his conspiracy

claim. Thus, the court's decision to withdraw Earle's conspiracy

claim from the jury did not violate any right to a jury trial

14
The Seventh Amendment provides: "In Suits at common law,
where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a
jury shall be otherwise re-examined in any Court of the United
States, than according to the rules of the common law."

-30-
because it only deprived Earle of the possibility of an irrational

verdict.

Here, however, the majority does not hold, under either

the traditional directed verdict analysis or the Earle harmless

error analysis, that the directed verdict for Ciampa in the first

trial only deprived plaintiffs of the possibility of an

unreasonable verdict at the hands of the first jury. On the

contrary, the majority acknowledges that plaintiffs presented

evidence at the first trial that was arguably sufficient for the

jury to find Ciampa liable for retaliation. In these

circumstances, the decision not to allow plaintiffs' claims against

Ciampa to be heard by the jury, and to affirm the directed verdict

in favor of Ciampa, implicates plaintiffs' Seventh Amendment

rights.

IV.

Even if the directed verdict for Ciampa and the jury

verdict for Cachopa had occurred in the course of a single trial,

Earle and similar cases would not support a finding of harmless

error here. On the facts of this case, as set forth by the

majority, it is clear that the jury verdict for Cachopa did not

"necessarily defeat[]" plaintiffs' claims against Ciampa. Goulet,

512 F.3d at 43. Instead, for a variety of reasons, a rational jury

could logically reject plaintiffs' retaliation claims against

-31-
Cachopa, but at the same time uphold plaintiffs' retaliation claims

against Ciampa.15

For example, a rational jury could have reached different

conclusions about Ciampa and Cachopa on the issue of motive.

Plaintiffs' retaliation claims required a showing that Ciampa,

Cachopa, or both took adverse actions motivated at least in part by

plaintiffs' protected conduct. See Welch, 542 F.3d at 936. The

inquiry into motive is highly individualized and fact-specific,

requiring an evaluation of the defendant officers' actual,

subjective intent. See, e.g., Rivera-Torres v. Ortiz-Velez, 341

F.3d 86, 97 (1st Cir. 2003) (explaining that "subjective intent is

an essential element" of analogous political discrimination claim

under First Amendment). As the majority acknowledges, there was a

central dispute in this case on the element of motive --

plaintiffs' case as to retaliatory motive "rested primarily on soft

inference as against flat denials" by Ciampa and Cachopa, and in

particular, both defendant officers denied knowing who had

testified before the grand jury. A rational jury could well find,

based on its assessment of the defendant officers' credibility or

for other reasons, that Ciampa and Cachopa had different levels of

knowledge about plaintiffs' protected conduct or otherwise had

different subjective motives for their actions.

15
Unlike in Earle, no special verdict form or special
questions were put to the jury in the second trial, and therefore
we cannot know the basis for the jury's verdict for Cachopa.

-32-
 Similarly, the alleged retaliatory acts by the two

defendant officers, although overlapping, were not identical. As

the majority acknowledges, plaintiffs also alleged some retaliatory

acts "for which Ciampa [was] the primary actor[];" these "were not

squarely presented to the jury in the second trial." For example,

plaintiffs alleged that Ciampa took several retaliatory acts during

the period he served as acting police chief; those acts included

directing Chamberlin to undergo a medical examination and issuing

letters of warning to Wohlgemuth that were placed in his personnel

file.16

The majority, relying on Agosto-de-Feliciano v.

Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir. 1989) (en banc),

asserts that these additional acts by Ciampa do not rise to the

level of adverse employment actions sufficient to sustain a

retaliation claim. However, as the majority acknowledges,

plaintiffs' central claim against the defendant officers was that

they carried on "a systematic campaign of retaliatory harassment"

against plaintiffs in 2004 and 2005. For purposes of evaluating

whether this campaign of harassment rose to the level of an adverse

employment action, the acts of harassment cannot be isolated and

analyzed separately. Instead, the trier of fact must determine

16
In addition, some evidence of adverse conduct, including
changes made to plaintiffs' training locations, was presented at
the second trial without a clear showing of whether Cachopa or
Ciampa was the primary actor.

-33-
whether the course of harassment, taken as a whole, "result[ed] in

a work situation 'unreasonably inferior' to the norm for the

position." Agosto-de-Feliciano, 889 F.2d at 1218; accord Welch,

542 F.3d at 937. Given the somewhat different evidence of

harassment by the two defendant officers, a jury could reasonably

find that the actions by Cachopa did not amount to a campaign of

retaliatory harassment, but the somewhat different actions by

Ciampa did.

V.

In this case, the majority declines to evaluate the

directed verdict for Ciampa under the well-established standard --

assessing whether, viewing the evidence presented at the first

trial in the light most favorable to plaintiffs, no reasonable jury

could find Ciampa liable for retaliation. Indeed, the majority

effectively acknowledges that if it did apply the proper standard,

focusing on the evidence before the district court at the time of

its ruling, the majority would have to conclude that the directed

verdict for Ciampa was erroneously granted and remand the case for

a new trial. To avoid that result, the majority turns to a

harmless error analysis. However, for the reasons discussed above,

the majority is also unable to engage in the harmless analysis

conducted in Earle. Earle and similar cases do not support a

finding of harmless error where, as here, the directed verdict and

the subsequent jury verdict occurred in the course of two separate

-34-
trial proceedings, as to two different defendants, and as to

somewhat different allegations.

In the end, the majority resorts to affirming based on

its impression, from the paper record, that Cachopa was at least as

culpable as Ciampa, that the jury in the second trial rejected

plaintiffs' claims against Cachopa, and that remanding for a new

trial on the claims against Ciampa would therefore be pointless.

I cannot join in this reasoning, particularly where plaintiffs'

constitutional right to a jury trial is implicated. The district

court's grant of a directed verdict cannot be affirmed simply

because the majority feels as a matter of rough justice that a

remand would be a waste of time.

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