United States Court of Appeals
For the First Circuit
No. 04-2588
DARREN M. TRIPP,
Plaintiff, Appellant,
v.
SCOTT COLE; TOWN OF BETHEL,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Lynch, and Lipez, Circuit Judges.
Stephen C. Chute, with whom Carey & Associates P.A. was on
brief, for appellant.
Anne M. Carney, with whom Norman, Hanson & Detroy, LLC was on
brief, for appellees.
September 27, 2005
LIPEZ, Circuit Judge. The events that generated this
case began with a "dog at large" in Bethel, Maine and ended with
the termination of the town's chief of police. As a result of the
investigation and prosecution of the dog at large incident, a
disagreement arose between the police chief, plaintiff-appellant
Darren Tripp, and the town manager, defendant-appellee Scott Cole.
Cole wanted Tripp to intercede with the district attorney on behalf
of the dog owner; Tripp expressed his discomfort with the request.
Four months later, citing various issues unrelated to the dog at
large incident, Cole suspended Tripp for a month; he later fired
him. Tripp then sued Cole and the Town of Bethel, claiming that he
had been retaliated against for speech protected under the First
Amendment and state law. The district court granted summary
judgment for defendants. We affirm.
I.
A. Facts
We recite the facts in the light most favorable to the
non-movant, Tripp, and draw all reasonable inferences in his favor.
Smith v. Robertshaw Controls Co., 410 F.3d 29, 31 (1st Cir. 2005).
In October 2002, Chief Tripp observed a dog at large and
called the town's animal control officer. According to witnesses
(including the town engineer), the animal control officer pursued
the dog into the owner's garage and captured it there, when,
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arguably, it was no longer a dog at large. A summons was issued to
the dog's owner, Sherry Thurston.
Thurston repeatedly called Cole to complain about the
summons. Eventually (after checking with the town engineer), Cole
asked Tripp to dismiss the summons. Tripp -- who surreptitiously
recorded the conversation -- responded that the matter was now in
the district attorney's hands. Cole then asked Tripp to ask the
district attorney to "dump" the summons, and insisted on Tripp's
word that he would do so. Tripp responded, "I can ask the DA what
he wants to do, but when it comes this far, you know I'm not
comfortable doing this."
At Thurston's arraignment in November 2002, Tripp
dutifully passed along Cole's request to the assistant district
attorney (ADA).1 That same day, Cole e-mailed Tripp to ask whether
he had asked the ADA to dismiss the case. Tripp went to Cole's
office and told him that he had relayed Cole's request, although
Cole testified at his deposition that he had no idea whether or not
Tripp had relayed the request. The record is unclear as to what
ultimately happened with the summons.
At some point that winter, Tripp spoke to two Bethel
selectmen and noted that his relationship with Cole had "cooled,"
due, in his opinion, to the Thurston summons issue. The selectmen
1
The record does not reveal the ADA's response.
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agreed, although without a particular basis for personal knowledge
disclosed by the record.
In March 2003, Cole gave Tripp a written notice of a one-
month suspension from duty with pay. The notice listed a variety
of alleged misdeeds by Tripp, some of which were two years old,
most of which had never been mentioned to Tripp before, and none of
which had ever been noted in his personnel file. Tripp conceded
that some, though not all, were true. His suspension ended in
April 2003, and he returned to duty.
In January 2004, Cole gave Tripp a document describing
Tripp's failure to respond to an armed robbery call in December
2003. The incident was investigated over the next month. In
February 2004, Tripp was terminated from his job for cause. He
appealed to the Board of Selectmen, which upheld the termination by
a 3-2 vote.
B. Procedural history
Tripp sued Cole and the Town, alleging a claim under 42
U.S.C. § 1983 and three claims under state law. Tripp does not
appeal the disposition of two of the state law claims and we do not
discuss them. The claims at issue in this appeal are that
defendants retaliated against Tripp for (1) speech protected by the
First Amendment, in violation of § 1983 (Count I), and for (2)
reporting a violation of Maine law, in violation of the Maine Human
Rights Act (MHRA), Me. Rev. Stat. Ann. tit. 5, §§ 4551-4634, and
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the Maine Whistleblowers' Protection Act (MWPA), Me. Rev. Stat.
Ann. tit. 26, §§ 831-840 (Count III).2 The case was referred to a
magistrate judge, and the parties cross-moved for summary judgment.
The magistrate judge recommended summary judgment for
defendants on both claims. Tripp v. Cole, No. 03-289, 2004 U.S.
Dist. LEXIS 25124 (D. Me. Sept. 24, 2004) ("Tripp I"). The
magistrate judge evaluated the MHRA/MWPA claim first, on the theory
that "'[w]hen balancing the rights of the employee against those of
the employer, an employee's First Amendment interest is entitled to
greater weight where he is acting as a whistle-blower in exposing
government corruption.'" Id. at *12 (quoting Guilloty Perez v.
Pierluisi, 339 F.3d 43, 53 (1st Cir. 2003)). The magistrate judge
found that a reasonable person in Tripp's position would not have
believed Cole's request was illegal, and furthermore Tripp never
actually reported a violation. On the First Amendment claim, the
magistrate judge found that the speech at issue did not address a
matter of public concern. The district court reviewed the
magistrate's report and recommendation de novo and adopted it in
full. Tripp v. Cole, No. 03-289, 2004 U.S. Dist. LEXIS 20740 (D.
Me. Oct. 13, 2004). This appeal followed.
2
The MWPA prohibits discrimination against employees because
of whistleblowing activities, but the MHRA provides the individual
cause of action for an MWPA violation. See infra note 4.
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II.
Passing over two issues that require little discussion,3
we discern two main arguments in Tripp's appeal. First, he argues
that the court wrongly held that his conduct was not protected by
the MWPA. Tripp asserts that Cole's request was an unlawful
obstruction of government administration which Tripp reported to
Cole himself and to two Bethel selectmen. Second, Tripp argues
that the court wrongly held that his speech was not protected by
the First Amendment because it did not involve a matter of public
concern. He argues that his speech involved the important public
issue of the legality and propriety of town officials interceding
on behalf of affluent citizens to give them more favorable
treatment in court. We review the district court's grant of
summary judgment de novo. Smith, 410 F.3d at 34.
3
First, Tripp claims that the magistrate judge erred in
striking his post-discovery affidavit on the grounds that it
contradicted his deposition testimony. The magistrate judge
granted the motion to strike but expressly stated that the summary
judgment ruling did not depend on this evidentiary ruling because
it resolved the case on legal grounds for which the evidentiary
dispute was irrelevant. We follow a similar path, assuming
arguendo that the affidavit is part of the evidentiary record.
Second, Tripp claims that defendants denied him due process,
and therefore the court should have (1) excluded defendants'
evidence of reasons for his suspension and termination, and (2)
granted partial summary judgment declaring that the reason for the
adverse action was retaliation. We read this argument charitably
to say that, because defendants did not give Tripp a proper
opportunity to respond to the allegations against him, they should
not be permitted to rely on those allegations to justify his
termination. Because Tripp did not plead a due process claim in
his complaint, he has forfeited any such argument.
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A. Whistleblower Retaliation
Under the MWPA, "[n]o employer may discharge . . . or
otherwise discriminate against an employee . . . because[] [t]he
employee, acting in good faith, . . . reports orally or in writing
to the employer or a public body what the employee has reasonable
cause to believe is a violation of a law." Me. Rev. Stat. Ann.
tit. 26, § 833(1)(A).4 "[A] prima facie case of reprisal for
whistleblowing requires that the employee show that (1) he engaged
in activity protected by the statute, (2) he was the subject of
adverse employment action, and (3) there was a causal link between
the protected activity and the adverse employment action." Bard
v. Bath Iron Works Corp., 590 A.2d 152, 154 (Me. 1991).
Under the MWPA, the complained-of conduct need not
actually be illegal, but the employee must "prove that a reasonable
person might have believed" that it was. Id. at 155; see also
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 262 (1st
Cir. 1999) (explaining that "an employee's reasonable belief that
[the conduct] crosses the line suffices"). Tripp argues that it
was reasonable to believe that Cole's request to ask the prosecutor
to "dump" the Thurston summons was a violation of Me. Rev. Stat.
Ann. tit. 17-A, § 751(1), under which "[a] person is guilty of
4
Although the MWPA itself provides no private right of action,
complainants may, after appropriate administrative process, file a
civil action under the MHRA. See Schlear v. Fiber Materials, Inc.,
574 A.2d 876, 878-79 (Me. 1990).
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obstructing government administration if the person intentionally
interferes by force, violence or intimidation or by any physical
act with a public servant performing . . . an official function."
In Tripp's view, Cole attempted to interfere by intimidating Tripp
into seeking the termination of an ongoing criminal proceeding;
Tripp informed Cole and two selectmen that such a request was
illegal; and he was suspended (and eventually fired) as a result.
The district court found that Tripp had not engaged in
protected activity for two independent reasons: (1) a reasonable
person would not have considered Cole's request to be an
obstruction of government administration, and (2) Tripp never
reported to anyone his alleged belief that Cole's request was
illegal. See Tripp I, 2004 U.S. Dist. LEXIS 25124 at *15-16. We
find the first ground adequate to sustain the judgment, and do not
address the second.
Although the language of § 751 could theoretically apply
to a broad range of conduct, Maine courts have construed the
provision narrowly. In particular, we have not found, and Tripp
has not cited, any Maine case where a government official was
prosecuted under § 751 for an order to a subordinate employee. To
the contrary, in virtually all of the reported cases under § 751
and its predecessor common law doctrine, the defendant had
attempted to prevent a law enforcement officer from effecting a
search or arrest. Therefore, if we accepted Tripp's theory, he
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would be the first victim of that particular form of obstructing
government administration in over 100 years of reported Maine
cases. To be sure, the words of the statute do not foreclose the
possibility that § 751 could apply to a public official's order to
a subordinate. But "[i]f we are unwilling to stretch state
precedents to reach new frontiers, a litigant like [Tripp], who
deliberately chose to reject a state-court forum in favor of a
federal forum . . . is in a perilously poor position to grumble
about our stodginess." Porter v. Nutter, 913 F.2d 37, 41 (1st Cir.
1990) (quotation marks omitted).
Second, even if it were possible that a town manager's
order to a chief of police to ask prosecutors to dismiss a summons
could constitute "intentionally interfer[ing] . . . with a public
servant performing . . . an official function," Cole's request did
not -- and could not have been reasonably believed to -- qualify as
"intimidation" under § 751.5 Maine courts have defined
"intimidation" in this context as "unlawful coercion, extortion,
duress, or putting in fear." State v. Matson, 818 A.2d 213, 215
(Me. 2003) (quotation marks omitted). Tripp cites Cole's statement
that "I made my request and I'm expecting it to be honored."
Viewed in the light most favorable to Tripp, this statement might
sound like a vaguely worded threat to his continued employment with
5
Tripp does not claim that Cole interfered by "force,
violence, or . . . physical act," id. § 751(1).
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the Town. But Maine courts have interpreted § 751 to require much
more than vaguely worded threats. See Matson, 818 A.2d at 214-15
(vacating § 751 conviction where defendant physically interfered
with police officer's arrest of another person, but did not strike
officer, threaten him, or call him names, because such conduct was
not "intimidation"); State v. Janisczak, 579 A.2d 736, 738 (Me.
1990) (vacating § 751 conviction where defendant had yelled and
cursed at officers as they struggled with a large, violent suspect,
because such conduct was not "intimidation"). Accordingly, summary
judgment was proper on the MWPA claim.
B. First Amendment
According to Tripp, Cole and the Town retaliated against
him for speech protected by the First Amendment, namely (1) his
conversation with Cole, and (2) his remark to two selectmen that
his relationship with Cole had "cooled" as a result of the Thurston
summons incident.
In assessing a public employee's claim of workplace
retaliation for speech, we apply a three-part test: "(1) whether
the speech involves a matter of public concern; (2) whether, when
balanced against each other, the First Amendment interests of the
plaintiff and the public outweigh the government's interest in
functioning efficiently; and (3) whether the protected speech was
a substantial or motivating factor in the adverse action against
the plaintiff." Mihos v. Swift, 358 F.3d 91, 102 (1st Cir. 2004).
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The district court determined that Tripp's speech at issue did not
involve a matter of public concern. We review that decision de
novo. O'Connor v. Steeves, 994 F.2d 905, 912 (1st Cir. 1993).
"Whether an employee's speech addresses a matter of
public concern must be determined by the content, form, and context
of a given statement, as revealed by the whole record." Connick v.
Myers, 461 U.S. 138, 147-48 (1983). In some cases the content
alone establishes the public nature of the matter; in others the
form and context make it so:
Where a public employee speaks out on a topic
which is clearly a legitimate matter of
inherent concern to the electorate, the court
may eschew further inquiry into the employee's
motives as revealed by the 'form and context'
of the expression. On the other hand,
public-employee speech on a topic which would
not necessarily qualify, on the basis of its
content alone, as a matter of inherent public
concern (e.g., internal working conditions,
affecting only the speaker and co-workers),
may require a more complete Connick analysis
into the form and context of the
public-employee expression, 'as revealed by
the whole record,' with a view to whether the
community has in fact manifested a legitimate
concern in the internal workings of the
particular agency or department of government,
and, if so, whether the 'form' of the
employee's expression suggests a subjective
intent to contribute to any such public
discourse.
O'Connor, 994 F.2d at 913-14 (citations and emphases omitted).
We first address Tripp's statements to the selectmen that
his relationship with Cole had "cooled." These are classic
examples of speech concerning "internal working conditions,
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affecting only the speaker and co-workers." Id. at 914. Moreover,
the record does not reveal that "the community has in fact
manifested a legitimate concern in the internal workings" of the
Bethel police department or its interactions with the Town Manager,
nor that "the 'form' of [Tripp's] expression suggests a subjective
intent to contribute to any such public discourse." Id. That ends
that matter.
Perhaps recognizing that the disposition of a particular
"dog at large" summons is rarely a "matter of inherent concern to
the electorate," id. at 913-14, Tripp invokes larger themes. In
his view, the public concern of his speech lay in the principle
that "[a] citizen from an affluent neighborhood of the community
should abide by the same rules and be subject to the same
consequences as those from more modest circumstances." Tripp made
a similar argument to the magistrate judge. As she noted,
"[a]ccording to Tripp, 'there can be no higher public concern than
to have justice evenly administered without the Town's
administrators capriciously granting favors to special citizens.'"
Tripp I, 2004 U.S. Dist. LEXIS 25124 at *18. However, as the
magistrate judge also observed,"[t]he problem with this argument is
that it does not identify any 'given statement' by Tripp; it only
offers Tripp's personal opinion as to what Cole's personal motives
were when he interceded on Ms. Thurston's behalf." Id. The
magistrate judge was correct. In the absence of any citation to
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evidence in the summary judgment record that Tripp explained to
Cole his concern about the unequal administration of justice, Tripp
cannot establish that his speech to Cole invoked a matter of public
concern which led to his retaliatory dismissal.
Tripp cites only his statement to Cole that he was "not
comfortable" with Cole's request. An opaque statement such as "I'm
not comfortable doing this" is not "clearly a legitimate matter of
inherent concern to the electorate." Id. (emphases added). It
certainly does not invoke the unequal administration of justice
concern. As stated, the content of Tripp's speech conveyed nothing
more than his preference not to intercede with the ADA in the
resolution of a particular dog at large summons.
The "form and context" analysis does not assist Tripp
either. Under O'Connor, speech on internal working conditions may
rise to the level of public concern if "the community has in fact
manifested a legitimate concern in the internal workings of the
particular agency or department of government, and . . . the 'form'
of the employee's expression suggests a subjective intent to
contribute to any such public discourse." 994 F.2d at 914; see,
e.g., Baron v. Suffolk County Sheriff's Dep't, 402 F.3d 225, 234-35
(1st Cir. 2005) (noting that community had manifested concern in
the internal workings of sheriff's department, citing newspaper
articles and report commissioned by governor in response to
allegations of mismanagement).
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Here, the record does not reveal either community
interest in the process by which citizen complaints regarding
summonses for minor infractions are handled, nor any intent on
Tripp's part to contribute to (or create) a public discussion on
the topic. To be sure, as the magistrate judge noted, "[i]t is not
difficult to conceive of slightly different speech under slightly
different circumstances that could legitimately be described as
primarily of public concern." Tripp I, 2004 U.S. Dist. LEXIS 25124
at *22 n.8. However, "'an employee cannot transform a personal
conflict into an issue of public concern simply by arguing that
individual concerns might have been of interest to the public under
different circumstances,' . . . [and] the factual record in this
case does not present the kind of content, form and context that
should form the basis of a First Amendment claim." Id. (quoting
Markos v. City of Atlanta, 364 F.3d 567, 570 (5th Cir. 2004)).
Rather, we think that the district court accurately
characterized Tripp's speech in its context:
[T]he real dispute [was that] Tripp was upset
that Cole was poking his nose into police
business. . . . Although the 'big picture'
might be newsworthy, the actual content, form
and context of Tripp's speech reflect that
Tripp was speaking primarily as an employee
concerned about how he was going to perform
his job with regard to the Thurston summons
and about private perceptions that directly
related to his personal working relationships,
not as a concerned public citizen speaking
about matters predominantly of public concern.
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Tripp I, 2004 U.S. Dist. LEXIS 25124 at *20-21. For these reasons,
Tripp's speech did not address a "matter of public concern," and
summary judgment was proper on the First Amendment claim.
Affirmed.
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