Kearney v. Town of Wareham

United States Court of Appeals
For the First Circuit

No. 02-1264

STEPHEN J. KEARNEY,

Plaintiff, Appellant,

v.

TOWN OF WAREHAM ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Robert J. Murphy, with whom Holbrook & Murphy was on brief,
for appellant.
Joseph L. Tehan, Jr., with whom Katharine Goree Doyle and
Kopelman and Paige, P.C. were on brief, for appellees.

December 10, 2002
 SELYA, Circuit Judge. Plaintiff-appellant Stephen J.

Kearney, a police officer, repeatedly took issue with his employer,

the Town of Wareham (the Town), over the extent of the Town's

obligations under the Fair Labor Standards Act, 29 U.S.C. §§ 201-

219 (FLSA). He asserts that the Town and its hierarchs, angered

because he had prevailed in those disputes, cashiered him.

Claiming illegal retaliation, he sued the Town, its chief executive

(Town Administrator Joseph Murphy), and two of his quondam

superiors (Police Chief Thomas Joyce and Lieutenant Arthur J.

Brightman).1 The district court disposed of the case on the

defendants' motion for summary judgment. Kearney v. Town of

Wareham, Civ. No. 00-10115, 2002 WL 229690, at *4 (D. Mass. Feb. 1,

2002). Kearney now appeals. We affirm the judgment: the FLSA

does not constrain an employer who, despite harboring animosity

1
Kearney's complaint invoked an FLSA provision that provides
in pertinent part:

[I]t shall be unlawful for any person . . . to
discharge or in any other manner discriminate
against any employee because such employee has
filed any complaint or instituted or caused to
be instituted any proceeding under or related
to this chapter . . . .

29 U.S.C. § 215(a)(3). The individual defendants argued below that
they were not Kearney's employers for purposes of the FLSA. The
district court found it unnecessary to rule on this issue. See
Kearney v. Town of Wareham, Civ. No. 00-10115, 2002 WL 229690, at
*3 (D. Mass. Feb. 1, 2002). We emulate the district court's
example.

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toward an FLSA suitor, makes employment decisions on other grounds

— and does so with due deliberation and objectivity.

I. BACKGROUND

We glean the relevant facts from the summary judgment

record, drawing all reasonable inferences in favor of the party

opposing brevis disposition (here, the plaintiff). See Griggs-Ryan

v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).

Wareham, Massachusetts, is a bucolic community known

largely as a gateway to Cape Cod. Beginning in January of 1988,

Kearney served as a patrol officer and canine handler for the

Wareham Police Department. As a canine handler, Kearney brought

his dog home each evening and provided essential care. The Police

Department did not count the time spent ministering to the animal

as part of Kearney's 40-hour work week.

On May 17, 1994, Kearney and Todd Bazarewsky (a similarly

situated canine handler) demanded overtime compensation of up to

three hours per day for this work. They also sought additional

overtime for transporting the dogs to and from the police station.

When the Town rejected these entreaties, the officers filed suit

under the FLSA.2 A trial ensued, and the jury found in Kearney's

favor. Its verdict eventually translated into an award of $683.84

in damages, $2,346.81 in costs, and $34,589.00 in attorneys' fees.

2
Bazarewsky later left the Wareham Police Department. The
particulars of his situation are not relevant here, and we omit any
further mention of him.

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 The suit plainly left a bad taste in the mouths of

Kearney's superiors. After the verdict but before the case was

finally resolved, Chief Joyce circulated a memorandum entitled

"Mandatory Overtime Reduction." This document, dated April 17,

1997, anticipated the final judgment and warned that the police

force "must prepare to absorb the settlement costs of [Kearney's]

lawsuit from the Department's budget." The memorandum then

described the chief's plans to effectuate reductions in overtime

assignments to free up the needed funds. Kearney claims that the

money used to pay the judgment was not derived from the Police

Department's budget3 and that Chief Joyce's statements were

calculated to pit Kearney against his fellow officers (who counted

on overtime to supplement their income).

Kearney asserts that, as a result of the memorandum, his

colleagues acted cooly toward him. Moreover, his allegation (in

the course of the litigation) that the Town had acted in bad faith

rankled, and Chief Joyce, among others, voiced suspicions that

Kearney's victory had been procured by untruthful testimony.

From and after that point, Kearney's supervisors began

paying particularly close attention to his job performance. This

3
The record is clear that the payment did not emanate from the
Police Department's budget (and, therefore, that the Department did
not have to shrink overtime to defray this cost). Chief Joyce
claims that he became aware of this circumstance only after he had
circulated the memorandum. Kearney disputes this claim. Because
we assume the existence of a retaliatory animus, see infra Part
III, we need not resolve this factual dispute.

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scrutiny resulted in two reprimands. The first, issued on May 28,

1997, was for failure to discover a break-in at a local restaurant

during a patrol. The second, issued shortly thereafter, was for

failing to clean his revolver. Kearney admits to the accuracy of

the facts on which these reprimands were based but asserts (without

offering specific examples to the contrary) that such infractions

often were overlooked when committed by others. As an added

slight, he was assigned what he described as "the oldest and most

dilapidated" patrol car in the Police Department's fleet.

At some point in time — the record is silent as to the

exact date — Kearney assumed the position of shop steward for the

union that represented the rank and file members of the Wareham

Police Department. In that capacity, he helped to bring two more

FLSA claims against the Town. The first arose when the Police

Department asked officers to remain available in case their

services might be required during a predicted hurricane. Kearney

argued that officers deserved compensation for the time that they

spent at home awaiting a call to action. The other claim comprised

an effort to secure compensation for police officers for training

and roll-call time. In each instance, municipal officials found

the claim to be meritorious and adjusted officers' compensation

accordingly.

Not long after the last of these claims was settled, a

series of events unfolded that marked the beginning of the end.

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During the early morning hours of May 31, 1998, Kearney, while on

patrol, found a bag of expensive golf clubs. Although standard

procedure required officers to inventory lost property and either

place it inside the evidence shed or ask a sergeant to secure it

temporarily, Kearney eschewed these alternatives. Instead, he left

the clubs next to the evidence shed (at the rear of the station

house) without either logging them in or reporting that he had

found them. He did, however, mention his discovery to a fellow

officer, Dennis Damata.

The clubs vanished. They mysteriously reappeared twelve

days later (after their owner had reported them lost). Kearney

suspected that Damata had taken the clubs and said as much. When

Damata learned of this aspersion, he complained to Lieutenant

Brightman. After conferring with Chief Joyce, Brightman mounted an

internal investigation.

Brightman interviewed several police officers and the

owner of the golf clubs. He reported to Chief Joyce that he could

not reach "a factual conclusion." He did, however, express the

view that some of those interviewed were "being less than 100%

truthful" and that criminal conduct likely had occurred.

Emphasizing the disruptive effect of the incident, Brightman

recommended that the probe continue and that the Police Department

arrange polygraph tests for Kearney and Damata.

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 Both officers voluntarily agreed to undergo polygraph

examinations, which were administered by an independent expert.

The test results indicated that Damata was being truthful and

Kearney was not. Chief Joyce immediately placed Kearney on

administrative leave. He then wrote to Murphy on September 4,

1998, requesting the convening of a suspension hearing to look into

Kearney's conduct. Acceding to this request, Murphy appointed

Warren J. Rutherford, the Barnstable Town Administrator, as an

independent hearing officer. Kearney did not object to the

appointment.

Rutherford took testimony for four days over a period

from September 18 through October 9, 1998. Kearney and several

other police officers were among the witnesses. On October 15,

1998, Rutherford issued a detailed report in which he summarized

the evidence, found that Kearney had violated departmental rules,

and adjudged him guilty of "continued untruthful statements and

conduct." On this basis, Rutherford recommended Kearney's

immediate discharge. Four days later, Murphy adopted the hearing

officer's recommendation and terminated Kearney's employment. The

following day, Chief Joyce announced Kearney's termination in a

letter to all police personnel, noting that "[e]mployees who are

untruthful . . . will not be tolerated." At about the same time,

in what amounted to an exit interview, Chief Joyce told Kearney:

"you may have won the battle, but you didn't win the war." Not

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unreasonably, Kearney interpreted this as a reference to his

successful prosecution of FLSA claims.

Kearney appealed his termination to the Massachusetts

Civil Service Commission (the Commission). On November 22, 1999,

the Commission found Kearney guilty of "conduct unbecoming an

officer" and noted that his behavior had caused "dissonance within

the department." Withal, the Commission thought dismissal too

severe a sanction and reduced the penalty to a sixty-day

suspension. The state superior court affirmed the Commission's

decision. See Wareham Police Dep't v. Kearney, No. 00-0224, slip

op. at 7 (Mass. Super. Ct. Nov. 27, 2001). Judicial review ended

at that point. The dismissal never actually took effect (although

the sixty-day suspension presumably has been served).

In the meantime, Kearney had commenced the instant

action. After the close of discovery, the defendants moved for

summary judgment. The district court, in a thoughtful rescript,

granted the motion. Kearney, 2002 WL 229690, at *4. This timely

appeal followed.4

II. THE SUMMARY JUDGMENT STANDARD

The role of summary judgment is "to pierce the pleadings

and to assess the proof in order to see whether there is a genuine

4
Murphy died on October 18, 2000. There has been no
substitution of a party defendant, see Fed. R. Civ. P. 25(a); Fed.
R. App. P. 43(a), and the plaintiff no longer presses his claims
against the decedent.

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need for trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st

Cir. 1990) (quoting Fed. R. Civ. P. 56 advisory committee's note).

Thus, summary judgment is appropriate as long as "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Because

appellate review of orders granting or denying summary judgment is

plenary, Garside, 895 F.2d at 48, this court, like the district

court, "must view the entire record in the light most hospitable to

the party opposing summary judgment, indulging all reasonable

inferences in that party's favor." Griggs-Ryan, 904 F.2d at 115.

Despite this generous perspective, summary judgment is

not a hollow threat. Creating a genuine issue of material fact

requires hard proof rather than spongy rhetoric. See Mesnick v.

Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (explaining that

"[g]enuine issues of material fact are not the stuff of an opposing

party's dreams"). Thus, though the party opposing a summary

judgment motion enjoys a favorable presumption for the evidence he

adduces, that evidence must be such that a reasonable factfinder

could resolve the point in favor of the nonmoving party. United

States v. One Parcel of Real Prop. (Great Harbor Neck, New

Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992).

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 Of course, not every documented factual dispute will

avert the swing of the summary judgment axe. To achieve that end,

the dispute must relate to a material fact. See id. In this

context, "material" means that a fact has the potential of

affecting the outcome of the case. Id. And as to issues on which

the nonmoving party bears the burden of proof, "he must present

definite, competent evidence to rebut the motion." Id.

III. ANALYSIS

We note, at the outset, that Kearney appears to have

presented only a retaliatory termination claim to the district

court. When queried on this point at oral argument in this court,

Kearney's counsel had little to say. In a subsequent letter, see

1st Cir. R. 28(j), he identified those parts of the record that in

his view reflect the assertion of additional claims. This endeavor

offers no redemption.

Kearney's complaint makes only a single claim under the

FLSA. The other cited materials chronicle Chief Joyce's memorandum

and instances in which Kearney allegedly received disparate

treatment, but these events are mentioned solely as part of the

factual background of the case (presumably in an effort to show

animus). Because they were not channeled into a clearly

articulated claim, they have no standing here. See McCoy v. Mass.

Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) (explaining that

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"theories not raised squarely in the district court cannot be

surfaced for the first time on appeal") (collecting cases).

To cinch matters, Kearney repeats this omission on

appeal: he makes no developed argument in support of any claim

apart from retaliatory termination. That is an independently

sufficient ground for forfeiture of other claims that may be

lurking in the penumbra of his briefs. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that claims

presented on appeal in a perfunctory manner, without developed

argumentation, are deemed abandoned). Consequently, we focus

exclusively on the retaliatory termination claim.

The defendants suggest that we evaluate this case under

a burden-shifting framework. See St. Mary's Honor Ctr. v. Hicks,

509 U.S. 502, 506-07 (1993); Tex. Dep't of Cmty. Affairs v.

Burdine, 450 U.S. 248, 252-56 (1981); McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-05 (1973). Because we assume, as did the

district court, that the defendants harbored a retaliatory animus,

see Kearney, 2002 WL 229690, at *3, the burden-shifting framework

is inapposite. See Cardona Jimenez v. Bancomercio de P.R., 174

F.3d 36, 40 (1st Cir. 1999); Fennell v. First Step Designs, Ltd.,

83 F.3d 526, 535 (1st Cir. 1996). Given the evidence of animus,

this must be treated as a mixed-motive case.

We turn, then, to the proper method of analysis for such

cases. To establish a prima facie claim of retaliatory

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termination, Kearney must demonstrate his engagement in statutorily

protected activity, the fact of his dismissal, and a causal

connection between the former and the latter. See Hernandez-Torres

v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998);

Blackie v. Maine, 75 F.3d 716, 722 (1st Cir. 1998); Hoeppner v.

Crotched Mtn. Rehab. Ctr., 31 F.3d 9, 14 (1st Cir. 1994). Here,

the first two elements of the prima facie case plainly are present:

Kearney's FLSA claims were protected by statute, see 29 U.S.C. §

215(a)(3), and there is no doubt that he was dismissed from his

employment. The case turns, then, on whether the record, read in

the light most favorable to Kearney, suffices to support an

inference as to whether retaliatory animus was the "true reason or

motive" for his dismissal. Hoeppner, 31 F.3d at 14.

Kearney has not made such a showing. While his dismissal

followed closely upon the settlement of the final FLSA claim, that

fact, standing alone, is not enough to trigger an inference of

causation. Blackie, 75 F.3d at 723. More importantly, the record

is pellucid that the defendants acted only after an evidentiary

hearing conducted in such a way as to assure Kearney procedural

fairness. The capstone of this process was a recommendation by an

independent decisionmaker. Kearney has wholly failed either to

discredit this process or to show that, but for the defendants'

animus toward him, the recommendation would have been rejected.

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 We take the process step by step. As to the internal

investigation, Kearney has presented no evidence suggesting that

Brightman's probe was slanted or predisposed against him — and the

record suggests precisely the opposite. For aught that appears,

Brightman approached the investigation with an open mind and

recommended nothing more than polygraph tests for both

protagonists. Although Kearney cites several alleged flaws in

Brightman's investigative technique (e.g., his failure to date a

certain report, tape record the statements of some witnesses, or

retain his personal notes), he adverts to nothing that calls into

question the impartiality of the inquiry.

The polygraph tests comprise the next step. Kearney's

suggestion that the tests were both improvidently worded and poorly

administered does not advance his cause. The tests were

constructed and administered by a fully accredited independent

examiner who employed the same methodology for both protagonists.

On this record, it is surpassingly difficult to fault the

defendants for taking the polygraph results at face value.

This brings us to the hearing itself. While Kearney

intimates that it was a kangaroo court, he fails to support his

invective with an evidentiary predicate. Rhetoric alone will not

suffice to prevent summary judgment, and, here, the facts are

arrayed against Kearney. After all, he was represented by counsel

at the hearing, and the ground rules ensured him ample opportunity

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both to introduce evidence and to cross-examine adverse witnesses.

Equally as important, he has adduced no proof of bias or partiality

on the part of the independent hearing officer. See Kearney, 2002

WL 229690, at *3 n.3.

Kearney argues that neither the hearing officer nor the

underlying procedure deserves deference because Murphy could have

appointed an arbiter who was not neutral (or even assumed the role

himself). But Murphy did not follow such a course here. And in

all events, this argument is best directed to the Massachusetts

legislature, which prescribed the procedures for dismissing civil

servants. See Mass. Gen. Laws Ann. ch. 31, § 41 (West 2001). The

record reflects that the Town took measured efforts to comply with

Massachusetts law, and Kearney has offered no evidentiary support

for the view that Rutherford (the designated hearing officer) was

biased or partial.

The last step consists of Murphy's decision to accept,

and act upon, that hearing officer's recommendation. In that

regard, Kearney has offered nothing of probative weight to indicate

that Murphy's acceptance of Rutherford's recommendation was other

than a routine decision made in the ordinary course of Murphy's

duties.5 Moreover, the absence of any evidence that Murphy had

5
Kearney cites the letter in which Chief Joyce announced the
termination as an indication that the adoption of Rutherford's
recommendation was more than a pro forma administrative action.
The letter will not bear that weight. Although its language
suggests that Chief Joyce had little affection for Kearney, we have

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rejected independent hearing officers' recommendations in the past

undermines Kearney's position. In a mixed-motive case for wrongful

discharge, an employee cannot prevail unless he adduces some

significantly probative evidence that he would not have been fired

but for the proscribed animus. See, e.g., Randlett v. Shalala, 118

F.3d 857, 862 (1st Cir. 1997); Hoeppner, 31 F.3d at 14. Here,

Kearney's termination was objectively justified, and Kearney has

failed to produce any evidence suggesting that the firing was based

on something other than this objective justification. Thus, the

objective justification — the failed polygraph test, the hearing

officer's findings, and the recommendation for dismissal — broke

the causal link that Kearney sought to forge between the

defendants' animus and his ouster.

The protection afforded by the FLSA's anti-retaliation

provision is analogous to the protections that the First Amendment

offers for employee speech. Accordingly, the conclusion that the

investigation and hearing broke the causal link is reinforced by

the Supreme Court's decision in Waters v. Churchill, 511 U.S. 661

(1994). The Waters Court addressed the practical problem of how a

public employer may determine whether employee speech (or speech-

already assumed the existence of such animosity. See text supra.
At any rate, nothing about the letter impugns Murphy's actions.

Kearney also asserts that this letter was disseminated before
he was told of his firing, and suggests that the timing somehow
shows connivance. This assertion also fails, as the summary
judgment record does not support Kearney's premise.

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related conduct) may be used as a basis for an adverse employment

action. Id. at 677-78 (plurality op.). The Court held that the

employer may rest such an action on evidence produced in an

internal investigation so long as the findings gleaned from the

investigation are facially reasonable and drawn in good faith. Id.

at 677.6 This holding strongly suggests that although the Town

must justify Kearney's dismissal by reference to non-retaliatory

reasons, those reasons may rest on evidence obtained from an

internal investigation if (and to the extent that) the Town's

factual conclusions are facially reasonable and arrived at in good

faith. The Town easily clears this hurdle: Lieutenant Brightman's

investigation, the subsequent polygraph tests, and a procedurally

fair hearing before an independent decisionmaker generated facially

reasonable conclusions supporting Kearney's discharge, and there is

no significantly probative evidence suggesting that bad faith

sullied the investigation, the hearing, the recommendation, or

Murphy's acceptance of the recommendation.

Kearney tries to repair this broken causal link in two

ways. First, he points to the Commission's mitigation of his

firing. We fail to grasp the relevance of the Commission's

6
Although this holding is found in the opinion of a four-
member plurality, three concurring Justices would have placed a
lesser burden on the employer. Thus, the plurality's
reasonableness requirement has the force of law. See id. at 685
(Souter, J., concurring) ("A majority of the Court agrees that
employers whose conduct survives the plurality's reasonableness
test cannot be held constitutionally liable . . . .").

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determination. The Town was entitled to rely on the facially

reasonable decision of the independent hearing officer while that

decision was in force, and the subsequent modification of that

decision by a higher authority does not, in and of itself, imply

bad faith. See, e.g., Singh v. Blue Cross/Blue Shield of Mass.,

Inc., 308 F.3d 25, 41 (1st Cir. 2002) (holding that the reversal of

a peer review committee's recommendation does not indicate that the

recommendation was made in bad faith). In all events, although the

Commission reduced Kearney's dismissal to a sixty-day suspension,

it agreed with the hearing officer that Kearney's conduct was

unbecoming an officer and warranted some meaningful form of

discipline.

Kearney's second effort is equally unavailing. He

asserts that he was hailed as a model police officer before he

began pursuing FLSA claims and asseverates that the Town's

willingness to cashier him indicates that the adverse employment

decision was driven by retaliatory animus. Even if Kearney's

characterization of his prior record is accurate, the conclusion

that he seeks to draw does not follow. Courts must act with a

certain restraint when examining an employer's personnel decisions.

See Mesnick, 950 F.2d at 825 ("Courts may not sit as super

personnel departments, assessing the merits — or even the

rationality — of employers' nondiscriminatory business

decisions."); see also Fennell, 83 F.3d at 537 (discounting a

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plaintiff's argument that her distinguished past performance

suggested that her employer's nondiscriminatory justifications were

pretextual). Our inquiry is not whether the Town's decision was

wise, but, rather, whether it violated the FLSA's anti-retaliation

provision. On this record, the defendants' proffered justification

for Kearney's termination negates any conclusion that retaliatory

animus was a driving force.

We summarize succinctly. Kearney had to proffer evidence

sufficient to ground an inference that the defendants' actions were

not based on legitimate justifications, but, rather, that their

stated reasons for ousting him were invoked merely as a pretext.7

See Gray v. New Engl. Tel. & Tel. Co., 792 F.2d 251, 256 (1st Cir.

1986). Given the procedural safeguards that attended the

evidentiary hearing, there is no basis — short of sheer speculation

— for a finding that the defendants believed that accepting, and

acting upon, the hearing officer's recommendation was unjustified.

Even if we assume, as Kearney urges, that the defendants were

gratified by having an opportunity to rid themselves of a gadfly

who had demonstrated a penchant for using the FLSA as a sword

against them, that is not enough to ground a retaliation claim.

7
This focus on the credibility of the defendants'
justification for the adverse employment action mitigates the force
of Chief Joyce's statement to Kearney in the exit interview. Even
if Kearney accurately characterizes both the substance and the
meaning of Chief Joyce's comment, quoted supra at 7, the comment
does not directly address (let alone impugn) the substance of the
proffered justifications.

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See Champagne v. Servistar Corp., 138 F.3d 7, 13 (1st Cir. 1998)

(holding that the existence of a retaliatory motive cannot overcome

a showing that an employee's dismissal resulted from a plainly

neutral test, applied even-handedly); DeNovellis v. Shalala, 135

F.3d 58, 66 (1st Cir. 1998) (denying relief to an employee despite

a showing of personal animosity because the "animus did not cause

[the employee] to be treated any differently than her similarly

situated co-workers"); cf. Blackie, 75 F.3d at 723-24 (explaining

that an employee, "by engaging in a protected activity [under the

FLSA], . . . does not acquire immunity" from the same discipline to

which his co-workers are subject). In short, Kearney had to adduce

some significantly probative evidence that the defendants'

retaliatory animus played a materially causal role in the

termination of his employment. He did not do so.

IV. CONCLUSION

We need go no further. For the reasons discussed above,

we conclude that the district court did not err in entering summary

judgment in favor of the defendants.

Affirmed.

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