United States Court of Appeals
For the First Circuit
No. 96-2315
ROBERT WAGNER AND MARGARET WAGNER,
Plaintiffs, Appellants,
v.
PATRICIA DEVINE, KEVIN A. JOURDAIN, CHARLES E. MORAN, III,
ARTHUR THERRIEN, JOHN E. WHELIHAN, THE CITY OF HOLYOKE,
MASSACHUSETTS, THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS,
LOCAL 388, AND THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Stewart T. Graham, Jr., for appellants.
John H. Fitz-Gibbon with whom Harry L. Miles was on brief for
appellees Devine, Jourdain, Moran, Whelihan and the City of Holyoke,
Massachusetts.
Lawrence D. Humphrey for appellees Therrien, International
Brotherhood of Police Officers, Local 388, and the International
Brotherhood of Police Officers.
August 1, 1997
COFFIN, Senior Circuit Judge. Appellant Robert Wagner,
former chief of police in Holyoke, Massachusetts, claims that his
First Amendment freedom of political association was violated
when members of the city council and others subjected him to
severe harassment, ultimately forcing him to resign, because of
his political support for the city's mayor. He filed this
lawsuit alleging federal constitutional and state law claims.1
The district court dismissed the First Amendment counts for
failure to state a claim, and declined supplemental jurisdiction
over the state law counts. Because the First Amendment does not
protect a policymaking official such as appellant from criticism
and harassment, we affirm.
I. Factual Background2
Appellant Wagner was appointed Holyoke's chief of police in
July 1991 by then newly elected Mayor Hamilton. Wagner asserts
that four members of the City Council who were Hamilton's
1 The complaint included a count for loss of consortium on
behalf of Wagner's wife, Margaret Wagner. Because this claim
survives or fails with Robert Wagner's state claims, we do not
address it separately.
2 We note that the facts alleged in Wagner's complaint
provide a much sketchier picture of the defendants' alleged
conduct than the facts described by counsel at the hearing on
defendants' motion to dismiss. In reviewing a Rule 12(b)(6)
dismissal, we typically consider the "well-pleaded facts as they
appear in the complaint," see Correa-Martinez v. Arrillaga-
Belendez, 903 F.2d 49, 51 (1st Cir. 1990) (emphasis added).
Because we ultimately uphold the dismissal, and the additional
facts are helpful in understanding the case, we draw the facts in
this section from both the complaint and the hearing. For
purposes of the motion to dismiss, we take the allegations as
true and grant all reasonable inferences in Wagner's favor.
Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).
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political opponents engaged in a campaign of harassment against
him for the purpose of embarrassing the mayor and forcing
appellant to resign. He contends that their criticisms of his
job performance were unfair and inaccurate, and that their
actions were motivated solely by their opposition to his
political beliefs and his political support of the mayor.3 He
further asserts that the president of the police union, and
through him the local and international unions, conspired with
the council members to effectuate the plan to oust him.
The complaint accuses the council members of harassing him
by means of unspecified "actions," and numerous false and
defamatory statements. At the hearing on the motion to dismiss,
appellant's counsel identified the challenged actions as follows:
They were constantly criticizing him. They had
subcommittees that they were chairing and they had him
up to see the council constantly, criticizing him in
everything he did . . . . They tried to eliminate his
salary. They reduced his salary. They reduced his
benefits. They refused to fund programs that he was
pushing.
Although the mayor has sole authority under the city charter to
hire or fire the police chief, the council has power to set the
salary and benefits for the position. According to Wagner, the
four defendant council members, aminority of the governing body,
3 In his appellate briefs, Wagner makes several passing
references to a First Amendment violation based on his political
speech, as well as on political affiliation, and he cites several
speech cases in support of his arguments. The complaint, the
hearing on the motion to dismiss, and the district court's
opinion all reveal that this case has been litigated solely on
the theory that defendants harassed and constructively discharged
him based on his political beliefs and affiliation. Our analysis
is therefore confined to that context.
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"led the charge" against him and secured the complicity of enough
other councilors to accomplish their unlawful objectives.
Wagner resigned in September 1994. He asserts that he was
forced to do so because the defendants' actions and statements
hindered, undermined, and interfered with the performance of his
duties, and thus constituted a constructive discharge.4
This lawsuit followed. In addition to federal civil rights
claims under 42 U.S.C. 1983, which assert violation of his
First Amendment right to political association, Wagner alleged a
state civil rights violation, and state law claims of defamation,
tortious interference with contractual relations, and, in his
wife's name, loss of consortium. In response to the defendants'
motion to dismiss under Fed. R. Civ. P. 12(b)(6), the district
court substantively addressed only the section 1983 count. It
ruled that "the alleged harassment which Wagner sustained at the
4 Defendants contend that they cannot be found liable for a
constructive discharge because only the mayor had the authority
to fire Wagner. Their argument cuts too narrowly. Although the
city council may not have had explicit authority to terminate the
police chief, its authority to set salary, benefits and working
conditions gave it the power to accomplish a constructive
discharge. See, e.g., Vega v. Kodak Caribbean, Ltd., 3 F.3d 476,
480 (1st Cir. 1993) (constructive discharge occurs when "working
conditions [are] so intolerable[] that a reasonable person would
feel compelled to forsake his job rather than to submit to
looming indignities"); Aviles-Martinez v. Monroig, 963 F.2d 2, 6
(1st Cir. 1992) (similar). Of course, a minority of the council
does not have such power, and a finding of constructive discharge
would require some showing that the challenged conduct actually
was attributable to the alleged discrimination. See generally
Scott-Harris v. City of Fall River, Nos. 95-1950-1952, 95-2100,
1997 WL 9102, at *9-10 (1st Cir. Jan. 15, 1997), cert. granted
sub nom Bogan v. Scott-Harris, 65 U.S.L.W. 3809 (U.S. June 10,
1997) (No. 96-1569). In any event, as we conclude infra, such a
discharge would not be actionable if, as here, the affected
employee was a policymaker.
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hands of a minority of the city councilors and a subordinate
police officer was not of sufficient degree to constitute 'a
constitutionally significant burden on [Wagner's] political
association right.'" Memorandum and Order at 5 (quoting Agosto-
de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1216 (1st Cir. 1989)
(en banc)).
The court also concluded that, even if the harassment had
been sufficiently severe to implicate constitutional concerns,
Wagner's First Amendment claim still would fail because the
police chief's position was one for which political affiliation
is an appropriate requirement. Public employees who hold such
positions, the court ruled, are not protected by the First
Amendment from partisan attacks on their job performance. Having
dismissed the federal claims, the court declined to exercise
supplemental jurisdiction over the remaining state law causes of
action and dismissed them as well.
The Wagners then filed this appeal. Our review of the
district court's Rule 12(b)(6) dismissal is de novo. Romero-
Barcelo v. Hernandez-Agosto, 75 F.3d 23, 28 n.2 (1st Cir. 1996).
We may affirm a dismissal for failure to state a claim only if it
clearly appears that, on the facts alleged, the plaintiff cannot
recover on any viable theory. Correa-Martinez v. Arrillaga-
Belendez, 903 F.2d 49, 52 (1st Cir. 1990). Because the district
court's ruling that the First Amendment does not protect Wagner
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from politically motivated discrimination is both correct and
dispositive, we turn to that issue first.5
II. Discussion
The Supreme Court more than twenty years ago established
that the First Amendment provides protection for public employees
from adverse job action based solely on partisan political
affiliation. See Elrod v. Burns, 427 U.S. 347 (1976) (plurality
opinion); Branti v. Finkel, 445 U.S. 507 (1980); Rutan v.
Republican Party, 497 U.S. 62 (1990).6 The protection is not
universal, however. In its precedent-setting case examining the
constitutionality of the patronage system, the Court recognized
the competing First Amendment interest of the in-power political
party "to insure that policies which the electorate has
sanctioned are effectively implemented," Elrod, 427 U.S. at 372.
The Court therefore allowed patronage practices to continue for
those employees who, inter alia, make policy or occupy positions
of confidence. Id.; Branti, 445 U.S. at 517-18.7
5 Wagner contends that the district court's other holding,
that the harassment he suffered was not constitutionally
significant, was based on a misreading of the complaint. We need
not, and therefore do not, take up this issue.
6 The Supreme Court addressed politically motivated
discharges in Elrod and Branti, extending its reasoning to other
forms of employment discrimination in Rutan.
7 At various points in this opinion, we use the term
"policymaker" as a shorthand reference for the several categories
of employees for whom partisan affiliation is an appropriate job
criterion. Such employees are "'involved in policymaking, the
communication of political ideas, or sensitive tasks connected
with the policymaking function,' Vazquez Rios v. Hernandez Colon,
819 F.2d 319, 322 (1st Cir. 1987), []or 'occupy[] positions of .
. . unusually intimate propinquity to government leaders,' id. at
-6-
Our circuit has since faced a long line of cases raising the
issue of political discrimination in employment, most of which
have focused on whether the particular position held by the
plaintiff employee fell inside or outside the First Amendment-
protected sphere. See, e.g., Agosto-de-Feliciano, 889 F.2d at
1212 & n.1, 1218 (noting "first wave" of cases involving outright
dismissals, and adopting standard for evaluating "second wave"
cases involving discriminatory conduct falling short of
discharge). This case presents an interesting departure from the
norm. Both parties accept that Wagner's job as police chief
sufficiently elevated him in the Holyoke hierarchy that, under
the principles we have just outlined, he could be fired based on
political affiliation.
Wagner, however, contends that he was subjected to an
impermissible constructive discharge because only the mayor --
the official who hired him and for whom he served as a
policymaker -- may fire him based on political affiliation
without violating the First Amendment. This is so, he maintains,
because the Elrod-Branti exception was designed to ensure that
the policies of a new administration -- "policies presumably
sanctioned by the electorate," Elrod, 427 U.S. at 367 -- would
not be undercut by the obstructive tactics of opposition
incumbents. This rationale provides no justification for
opponents of a new administration -- such as the defendants here
324." Correa-Martinez, 903 F.2d at 56 n.6.
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-- to harass the administration's supporters. Their conduct,
Wagner argues, is therefore unconstitutional.
Wagner's analysis ignores the reality of precedent. Both
Supreme Court and First Circuit caselaw have recognized the
applicability of the Elrod-Branti dichotomy outside the context
of a new administration's patronage practices. The conflict in
Rutan, where the Supreme Court held that the First Amendment
forbids government officials from basing less-than-discharge
actions such as hiring, promotion, and transfer on political
affiliation and support, did not arise amidst the seating of a
new administration. At issue was the implementation of an
executive order proclaiming a hiring freeze, with "exceptions"
allegedly made based on political affiliation. In referring back
to Elrod and Branti in the opinion's opening paragraph, the
majority broadly described those cases as protecting public
employees from discharge "solely for not being supporters of the
political party in power, unless party affiliation is an
appropriate requirement for the position involved," 497 U.S. at
64. That decision indicates that the First Amendment protection
against patronage practices, as well as the exceptions for
certain categories of highly placed employees, apply whenever
public employees are at odds politically with their superiors and
thus subject to politically discriminatory behaviors.
Our decision in Romero-Barcelo, 75 F.3d at 33-34, brings us
even closer to the present context. In rejecting a former Puerto
Rico governor's allegations that he had suffered severe political
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discrimination during a murder investigation because of his
association with the out-of-power New Progressive Party (NPP), we
stated:
The Supreme Court has held that the First Amendment
"protects nonpolicymakers from being drummed out of
public service on the basis of their political
affiliation or advocacy of ideas." . . . But Romero-
Barcelo most assuredly qualified as an NPP policymaker.
. . . Thus, the district court correctly found no First
Amendment protection for "a politician whose rights to
freedom of speech, freedom of association, and freedom
'to disassociate [oneself] from unpopular views' have
been injured by other politicians seeking to undermine
his credibility within his own party and with the
electorate."
75 F.3d at 34 (citations omitted). Cf. Larou v. Ridlon, 98 F.3d
659, 661 (1st Cir. 1996) (noting as a general principle that
"[t]he First Amendment protects nonpolicymaking public employees
from discrimination based on their political beliefs or
affiliation"); Correa-Martinez, 903 F.2d at 56-57 & n.6 (same).
Our conclusion in Romero-Barcelo stemmed from a recognition
that an administration's need to assure that it can implement the
people's will is matched by the equally legitimate right of
political opponents to exert pressure on behalf of their
viewpoints and constituents. Indeed, like the mayor, the
minority members of the Holyoke City Council represented a
portion of the electorate, and they therefore share the rationale
that they were pursuing objectives sanctioned by the voters who
supported them. The democratic process envisions a give-and-take
in matters of policy, and the unfortunate fact that some
individuals will be caught in the crossfire is "an all too real
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by-product of our long-standing organization of political life
into two or more parties," Agosto-de-Feliciano, 889 F.2d at 1217.
The Elrod-Branti line of cases struck a balance between the
competing First Amendment interests by excluding policymaking
public employees from constitutional protection. See, e.g., id.
at 1215 (quoting Elrod to the effect that "there are First
Amendment interests on both sides"); Pieczynski v. Duffy, 875
F.2d 1331, 1334 (7th Cir. 1989) (noting "the balance").
Policymakers, as front-line representatives of the policies they
were hired to implement, can be expected to face stinging
partisan attacks against their efforts by outsiders seeking to
persuade the electorate (and fellow legislators) to make them the
insiders. Wagner was in a particularly vulnerable position
because of the division of power over his job between the mayor
and city council, both of whom possessed municipal authority --
albeit in different ways -- to terminate his employment. At
least when the political pressure exerted by those in power is
within their authority,8 the First Amendment does not provide a
shield for those whose positions are politically sensitive.
We add this comment about appellant's particular
circumstances. Were appellant's argument to be accepted -- i.e.,
that harassment and criticism by political opponents rising to
the level of a constructive discharge constituted a First
Amendment violation -- we quail at the prospect of judges and
8 There is no allegation, for example, that the city council
lacked authority to reduce, or even eliminate, the police chief's
salary, or that improper procedures were followed.
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juries being inundated by claims of unhappy politicians that
their opponents had transgressed the boundary between
constitutional and unconstitutional fair play. Partisan politics
does not, we fear, lend itself to the rulemaking authority of a
Marquess of Queensberry.
We therefore conclude that, because there is no dispute that
appellant Wagner's position as police chief was a policymaking
one, the district court properly held that he had no First
Amendment right to be free from discriminatory treatment based on
his politics. This conclusion makes it unnecessary to consider
the other issues surrounding his First Amendment claims,
including the adequacy of his allegations, the scope of
legislative immunity, and whether the allegedly improper motives
of a four-member minority of a fifteen-member city council
provide a basis for municipal liability. In these circumstances,
dismissal of the state law claims also is appropriate. See
McIntosh v. Antonino, 71 F.3d 29, 33 n. 3 (1st Cir. 1995).
The judgment of the district court is affirmed.
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