United States Court of Appeals
For the First Circuit
No. 04-1574
No. 04-1741
ROBERT WAGNER,
Plaintiff, Appellant/Cross-Appellee,
__________
MARGARET WAGNER,
Plaintiff,
v.
CITY OF HOLYOKE, MASSACHUSETTS,
Defendant, Appellee/Cross-Appellant,
DANIEL SZOSTKIEWICZ; MARK COURNOYER;
STEPHEN DONOGHUE,
Defendants, Appellees.
__________
ARTHUR MONFETTE; ARTHUR THERRIEN; DENNIS EGAN;
THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS;
LOCAL 409 OF THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS;
LOCAL 388 OF THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Stewart T. Graham, Jr. with whom Graham & Graham was on brief
for plaintiff,appellant/cross-appellee Robert Wagner.
John H. Fitz-Gibbon with whom Harry L. Miles, Green, Miles,
Lipton, White & Fitz-Gibbon, John C. Sikorski, Dorothy Varon and
Robinson Donovan, P.C. were on brief for defendant, appellee/cross-
appellant City of Holyoke and defendants, appellees Daniel
Szostkiewicz, Mark Cournoyer and Stephen Donoghue.
April 13, 2005
Per Curiam. In June 1998, Robert Wagner, a sergeant in
the Holyoke Police Department, brought suit against the City of
Holyoke, its former mayor, two of its former police chiefs and
others for an alleged campaign of retaliation undertaken against
him during the mid-1990s. Wagner claimed that he had been
subjected to disciplinary action, harassment and public humiliation
because he had disclosed a variety of information--including
allegations of police misconduct--to newspapers and state and
federal agencies. Wagner's initial complaint presented multiple
statutory and common law claims, but the only ones of relevance
here are those under 42 U.S.C. § 1983 (2000), for violation of the
first and fourteenth amendments, and under the Massachusetts
whistleblower statute, Mass. Gen. Laws ch. 149, § 185 (2002).
On motions for summary judgment, the district court
granted qualified immunity to the individual defendants on the
section 1983 claim and dismissed the whistleblower claim because
Wagner had failed to provide written notice to his supervisor
before filing suit (as this court had previously interpreted the
statute to require). On the section 1983 claim against Holyoke,
the court denied Wagner's motion for a partial directed verdict
regarding particular incidents of speech that it had found worthy
of first amendment protection. The section 1983 claim was
presented to the jury on two alternative theories: that Wagner had
suffered an "adverse employment action" in retaliation for his
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speech, and that he had endured "severe harassment" for that
speech. In June 2003, after a six-week trial, the jury found for
the city on the former theory; it found for Wagner on the latter,
awarding nominal damages of one dollar. The jury ruled for
defendants on Wagner's remaining claims, none of which are
presently at issue.1
Wagner appeals, claiming that the district court erred in
granting qualified immunity to the individual section 1983
defendants, in denying his motion for a partial directed verdict,
in dismissing his state whistleblower claim, in drafting various of
its jury instructions, and in declining to grant a new trial on
damages for his "severe harassment" claim and in toto for his
"adverse employment action" claim. The city cross-appeals,
challenging the district court's award of attorneys' fees and costs
to Wagner.
Over the four years following his resignation as chief of
police in September 1994, Wagner (who remained on the force in a
subordinate capacity) received numerous suspensions and reprimands-
-some allegedly in response to various disclosures and public
statements made by Wagner, but others for independent instances of
1
Wagner also sought a declaratory judgment that certain police
department regulations violated the Massachusetts Declaration of
Rights and the federal constitution. The district court initially
granted a preliminary injunction to Wagner on two of the challenged
regulations; these regulations were ultimately rewritten by the
Holyoke police department, mooting Wagner's challenge to their
constitutionality.
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insubordination or violations of departmental regulations. The
district court found that Wagner had engaged in six categories of
speech that were provisionally protected under the first amendment,
see Pickering v. Bd. of Educ., 391 U.S. 563 (1968), and that
ultimately formed the basis for his claims at trial: (1) statements
in 1996 and 1997 to a city councilman regarding discrimination,
working conditions and illegal activity in the police department;
(2) statements made to assist a fellow officer in filing formal
complaints of discrimination; (3) statements to the state attorney
general's office regarding police corruption; (4) comments made to
a local reporter for a set of three articles in February 1997; (5)
a complaint to the Massachusetts Committee Against Discrimination,
filed by Wagner in May 1997, and a "rebuttal" filed by him in
October of the same year; and (6) a written submission to the
Massachusetts Labor Relations Commission in May 1998.
Wagner claims that the district court should have granted
a directed verdict on the disciplines he suffered that corresponded
to the last three of these categories of speech. He notes that a
number of Holyoke officials testified that if he had not made these
statements or released various documents associated with them he
would not have been disciplined, and he argues that this fact--
coupled with the fact that the underlying speech was protected
under the first two prongs of Pickering--entitled him to a directed
verdict in his favor on those claims.
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These incidents of Wagner's speech, however, also
involved the disclosure of confidential material protected by
departmental regulations and Massachusetts law, as well as breaches
of the police department's chain of command. At trial, Holyoke
claimed that it was Wagner's acts of unlawful disclosure and
insubordination that were the true grounds for disciplining him--or
at least independent grounds that entitled the city to a defense
under Mount Healthy City School District Board of Education v.
Doyle, 429 U.S. 274 (1977).
Wagner attempts to undermine this argument by claiming
that the disclosures and disobedience were not "independent" acts
that could support disciplinary action, but were rather part and
parcel of his speech. We disagree. While individuals are entitled
to speak on matters of public concern free from the threat of
retaliation (at least if their speech is protected under
Pickering), this does not entitle those same individuals to use
whatever methods or instrumentalities they see fit to convey their
message. If the use of such inappropriate means of expression--
rather than the speech itself--prompts discipline, there is no
first amendment violation. This is the very essence both of
Pickering's third-prong inquiry into whether the protected speech
was a "substantial or motivating factor" behind an adverse
employment action, and of the Mount Healthy defense, which asks if
the plaintiff would have been disciplined even in the absence of
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his protected speech. See O'Connor v. Steeves, 994 F.2d 905, 913
(1st Cir.), cert. denied, 510 U.S. 1024 (1993).
The documents disclosed by Wagner included arrest
reports, an internal affairs report concerning a fellow officer,
and 20-year-old personnel documents. His actions bypassed the
department's well-established chain of command. These infractions
may or may not have been the true reasons (or independent reasons)
for Wagner's discipline at the hands of his superiors, but they
certainly could not be discounted to such an extent as to require
a directed verdict for Wagner. Notwithstanding the snippets of
testimony Wagner points to that suggest that his discipline was
driven by his speech itself, the evidence was by no means enough to
conclusively establish such causation--let alone preclude a defense
under Mount Healthy that Wagner would still have been disciplined,
regardless of his speech, for other improprieties incidental to
that speech. The district court's denial of a directed verdict was
not error, nor (for the same reason) was its denial of Wagner's
motion for a new trial on his "adverse employment action" claim
after the jury had found against him.
Turning to the issue of qualified immunity, we agree with
both Wagner and the district court that, taking the facts in the
light most favorable to Wagner, the disciplines he endured could
have made out a first amendment violation. Nonetheless, as a
shield to "all but the plainly incompetent," Malley v. Briggs, 475
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U.S. 335, 341 (1986), qualified immunity is meant to protect any
action by a government official with a colorable argument for
constitutionality. Such immunity can be overcome only if the
constitutional right at issue is clearly established and a
reasonable official would have known that his actions violated that
right. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The general right invoked by Wagner--to engage in speech
on matters of public concern without retaliation--was clearly
established prior to 1994. But qualified immunity requires that
the general right be placed in a reasonably specific context; and
given the facts surrounding Wagner's discipline, this is not a case
in which reasonable officers, in light of clearly established law,
"must have known that [they were] acting unconstitutionally."
Dirrane v. Brookline Police Dep't, 315 F.3d 65, 71 (1st Cir. 2002).
To the contrary, Wagner's broad range of complaints (some
consisting of unprotected and antagonistic speech), coupled with
his disregard of confidentiality protocols and his disobedience in
following the department's chain of command, would have permitted
a reasonable superior officer to believe that he was entitled to
discipline Wagner regardless of the content of his speech,
consistent with the protections of the first amendment. Even if
this reasoning were mistaken, it would not have been egregiously so
and, accordingly, qualified immunity is available. See Ringuette
v. City of Fall River, 146 F.3d 1, 5 (1st Cir. 1998).
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Little need be said about Wagner's remaining claims of
error. We have previously interpreted the Massachusetts
whistleblower statute to preclude suits filed by municipal
employees without prior written notice to their supervisors. See
Dirrane, 315 F.3d at 73. Section 185(c)(2)(C) of the statute,
which eliminates the notice requirement when disclosure is made to
provide evidence of a crime, is irrelevant: Wagner makes no claim
that the disclosure at issue here--his filing of suit--was for the
purpose of providing criminal intelligence, and Wagner admits that
he did not serve written notice on his supervisor before bringing
suit. The reasoning of our prior decision in Dirrane, which is
binding on the panel, thus precludes Wagner's whistleblower claim.
Wagner's claims of error in the jury instructions also
fail. We perceive no error whatever in the district court's
definition of "adverse employment action." Nor do we believe that
its definition of "severe harassment," if it was indeed error, was
any more than harmless: there is no reasonable likelihood that the
jury, having awarded only one dollar to Wagner for his own
employment-related stress (supported by medical testimony), would
have given him more if the focus had been clearly broadened to
cover family-related concerns.
We also see no manifest injustice or inconsistency in the
jury's award of nominal damages for Wagner's "severe harassment"
claim: we agree with the district court that it was a plausible
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interpretation of the evidence for the jury to find that Wagner had
suffered harassment sufficient to make out a first amendment claim,
but that his actual damages derived from such a claim (which were
contested at trial) were de minimis. This is not a case in which
undisputed evidence compelled a finding of substantial damages.
On cross-appeal, Holyoke seeks to vacate the district
court's award of $72,840 in attorneys' fees and costs. Where, as
here, a plaintiff has succeeded in his section 1983 claim--even if
only for nominal damages--he is a "prevailing party" under the
relevant statute, 42 U.S.C. § 1988 (2000), and may be entitled to
such fees as the district court finds appropriate given the
proportionate success he has achieved. "We review fee awards
deferentially, according substantial respect to the trial court's
informed discretion. We will disturb such an award only for
mistake of law or abuse of discretion." Coutin v. Young & Rubicam
P.R., Inc., 124 F.3d 331, 336 (1st Cir. 1997) (internal citation
omitted).
The district court ordinarily must provide reasons for
its award and those reasons must be legally sound, see Coutin, 124
F.3d at 337, but the court below fulfilled its duty in this regard.
Wagner may well have made a greater fee request than was merited
given his limited success at trial, but the district court
compensated for this excess and we do not believe its calculus was
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erroneous--let alone so clearly erroneous as to constitute an abuse
of discretion.
Affirmed.
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