Welch v. Ciampa

United States Court of Appeals
For the First Circuit
No. 07-2470

ROBERT J. WELCH,

Plaintiff, Appellant,

v.

CHRISTOPHER CIAMPA, individually and in his capacity as Police
Chief of the Town of Stoughton, Massachusetts,TOWN OF STOUGHTON,
MASSACHUSETTS, RICHARD LEVINE, individually and in his capacity
as a Select Person for the Town of Stoughton, Massachusetts, JOHN
KOWALCZYK, individually and in his capacity as a Select Person
for the Town of Stoughton, Massachusetts, MANUEL CACHOPA,
individually and in his capacity as Police Chief of the Town of
Stoughton, Massachusetts,

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
Torruella, Cudahy,* and Lipez,
Circuit Judges.

Hillary Schwab, with whom Harold L. Lichten and Pyle, Rome
Lichten, Ehrenberg, & Liss-Riordan, P.C., was on brief for
appellant.
Michele E. Randazzo, with whom Jackie Cowin and Kopelman and
Paige, P.C., was on brief for appellee Town of Stoughton.
Valerie A. McCormack, with whom Stephen C. Pfaff and Louison,
Costello, Condon & Pfaff, LLP, was on brief for appellees
Christopher Ciampa, Manuel Cachopa, Richard Levine and John
Kowalczyk.

*
Of the Seventh Circuit, sitting by designation.
September 23, 2008
 CUDAHY, Circuit Judge. Robert Welch, a police officer in the

Town of Stoughton (the Town), filed this lawsuit against the Chief

of Police, the former Police Chief, two members of the Town’s Board

of Selectmen (the Board) and the Town, alleging that the defendants

impermissibly retaliated against him for exercising his rights

under the First Amendment of the Federal Constitution. He also

sought relief under a state whistleblower statute and under the

common law theory of tortious interference with advantageous

business relations. Welch appeals from the district court’s grant

of summary judgment for the defendants. We affirm in part and

reverse and remand in part.

I. Background

We set forth the facts in the light most favorable to Welch,

the nonmoving party. Ramos-Santiago v. United Parcel Serv., 524

F.3d 120, 122 (1st Cir. 2008). Welch joined the Stoughton Police

Department (the Department) in 1987, and in 1999 he was promoted to

sergeant. The following year, he was made detective sergeant, the

highest-ranking position in the department’s detective division. As

detective sergeant, Welch received a stipend in addition to his

sergeant’s salary and was eligible for overtime and detail

assignments that are not available to sergeants. The Police Chief

appoints officers to the detective sergeant position and other so-

called “specialist” positions, and the appointees serve in those

positions from July 1 through June 30 of the following year. The

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decision to appoint or to reappoint individuals to specialist

positions is within the sole discretion of the Police Chief. Welch

was reappointed to the detective sergeant position each year from

2000 through 2004.

This lawsuit emerged from public controversy surrounding the

management of the Stoughton Police Department. In June 2004, the

Board of Selectmen decided not to renew Police Chief Manuel

Cachopa’s contract. This decision reverberated throughout the Town

and through the Department and in short order a campaign was

initiated to recall the selectmen who had voted not to renew

Cachopa’s contract and to replace them with defendants Richard

Levine and John Kowalczyk. Levine and Kowalczyk promised to

reinstate Cachopa as Chief if they were elected.

The recall campaign divided the Department. A number of

officers were actively involved in supporting the recall effort,

attending meetings and publicly expressing their support for the

recall. Defendant Christopher Ciampa, a sergeant at the time, was

an outspoken supporter of the campaign, hosting a weekly show on

community public television called “Enough is Enough” that focused

on the recall campaign and the Board’s failure to renew Cachopa’s

contract. For his part, Welch decided not to participate in any

campaign activities related to the recall. His decision to remain

neutral was regarded as a betrayal by Cachopa, who allegedly

perceived those who did not publicly support the recall as being

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against it and, by extension, against him. Cachopa threatened

Welch, making comments such as “you picked the wrong side” and

“there are going to be changes in July.” Welch understood this last

comment to mean that he would not be reappointed to the detective

sergeant position. Cachopa and some of his supporters would “stare

down” officers who did not actively support the recall.

While the recall efforts were underway, two lieutenants in the

Department began looking into allegations of police misconduct. The

allegations, which included charges of witness intimidation and

attempted extortion, implicated Cachopa and several other police

officers. A special prosecutor was appointed to handle the

investigation and a grand jury was empaneled. In August 2004,

acting Police Chief David Chamberlin asked Welch to assist the

special prosecutor by participating in the Department’s

investigation into the alleged misconduct. Welch interviewed

witnesses and wrote reports on his findings over the next two

months. He also attended the grand jury proceedings, helped the

prosecutor prepare witnesses for their grand jury appearances and

testified before the grand jury about the results of his

investigation.

The investigation exacerbated the divisions within the

Department. Officers who supported the recall harassed Welch and

other officers who were perceived as not supporting the recall,

calling them “weasel” and “rat.” In addition, Cachopa told Welch

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that he had made a mistake by becoming involved in the

investigation. After becoming involved in the investigation, Welch

found rubber rats, derogatory cartoons and, on one occasion, a

bullet in his mailbox at the police station. In November 2004, Town

Manager Mark Stankiewicz placed Cachopa and six other officers on

administrative leave after learning that Welch and others who were

assisting in the investigation were being harassed. Levine and

Kowalczyk were elected to the Board that same month. Shortly

thereafter, the Board reinstated Cachopa as Police Chief and

directed Stankiewicz to reinstate the other officers who had been

placed on leave.

After resuming his position as Chief, Cachopa sought to have

Ciampa made deputy chief. Ciampa was a sergeant at the time and in

attempting to have Ciampa made deputy chief, Cachopa passed over

three higher-ranking lieutenants. Because deputy chief is a civil

service position, Stankiewicz told Cachopa that Ciampa could not be

made deputy chief without going through the civil service process

and he was made an “executive officer” instead. In this capacity,

Ciampa was the second in command at the Department. In December

2004, Cachopa changed the shift assignments of three lieutenants

who had been involved in the investigation of the Department. He

also moved the lieutenants’ offices so that they would have to

share office space with some of the sergeants who were the subject

of the grand jury proceedings. The lieutenants complained to

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Stankiewicz about the retaliatory atmosphere at the Department and

Stankiewicz hired an independent consultant to look into their

complaints. The consultant concluded that retaliation was occurring

within the Department and that in changing the lieutenants’ shifts

and work conditions, Cachopa was motivated by a desire to get back

at them for their perceived involvement in the grand jury

investigation.

Although he was vindicated by the results of the recall

election, Cachopa’s tenure as reinstated Chief was relatively

brief. In March 2005, the grand jury indicted Cachopa and two other

officers. Cachopa was placed on administrative leave and the Board

promoted Ciampa from “executive officer” to acting chief. In June

2005, Ciampa made the annual specialist position appointments.

Welch and one other officer, Detective Craig Lepro, were not

reappointed to their specialist positions. Welch was replaced with

an officer who had been a vocal supporter of Cachopa and who was

among the officers who had been placed on leave in November 2004

out of concern that he was interfering with the grand jury

investigation.

Welch filed this lawsuit in September 2005. He brought a claim

under 42 U.S.C. § 1983 alleging that Ciampa, Levine, Kowalczyk and

the Town of Stoughton violated his First Amendment rights by

removing him from the detective sergeant position in retaliation

for his refusal to participate in the recall campaign. In addition,

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Welch brought a claim against Ciampa for tortious interference with

advantageous business relations. In August 2006, Welch amended his

complaint to add Cachopa as a defendant. Welch also added a claim

against the individual defendants under the Massachusetts Civil

Rights Act and a claim against the Town under the Massachusetts

Whistleblower Act. In June 2007, the defendants moved for summary

judgment and in September 2007, the district court, in an oral

decision from the bench, granted summary judgment for all

defendants on all claims. This timely appeal followed.1

II. Discussion

We review a district court’s grant of summary judgment de

novo, viewing the evidence in the light most favorable to the

nonmoving party and drawing all reasonable inferences in its favor.

Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir. 2008). To defeat a

motion for summary judgment, the nonmoving party must “set forth

specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “A

genuine issue for trial exists as to [a material] fact if there is

evidence from which a reasonable trier could decide the fact either

way.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir.

2003). Although we give the nonmoving party the benefit of all

reasonable inferences, a party cannot rest on “conclusory

1
Welch does not appeal the grant of summary judgment on his
Massachusetts Civil Rights Act claim.

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allegations, improbable inferences, [or] unsupported speculation”

to defeat a motion for summary judgment. McCarthy v. Northwest

Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) (quoting Medina-

Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990))

(alteration in original).

A. First Amendment retaliation claim

Welch claims that the defendants retaliated against him for

his failure to participate in the recall election by refusing to

reappoint him to the specialist position of detective sergeant and

by subjecting him to a hostile work environment. In so doing, he

alleges, they violated the First Amendment. In Mt. Healthy City

School District Board of Education v. Doyle, the Supreme Court

established that in order to prevail on a free speech claim, a

plaintiff must show that he engaged in constitutionally protected

conduct and that this conduct was a substantial or motivating

factor in the alleged adverse employment action. 429 U.S. 274, 287

(1977); see also Padilla-García v. Guillermo Rodríguez, 212 F.3d

69, 74 (1st Cir. 2000). This analysis has been applied to political

discrimination claims as well. Padilla-García, 212 F.3d at 74. If

the plaintiff meets his prima facie burden, the defendant can

prevail if it can establish that it would have taken the same

action regardless of the plaintiff’s political beliefs or protected

conduct. Id. We first address whether the alleged retaliation

provides a basis for a § 1983 claim and, if it does, against whom

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Welch may maintain his claim.

1. Non-reappointment to specialist position

The defendants claim that Welch’s non-reappointment to the

detective sergeant position does not constitute a cognizable

adverse employment action. In Rutan v. Republican Party of

Illinois, 497 U.S. 62 (1990), the Supreme Court held that adverse

actions short of dismissal or demotion, such as denials of

promotions, transfers and rehires, can constitute actionable

adverse employment decisions. Id. at 75. Although the loss of a

specialist appointment is not among the adverse decisions

enumerated in Rutan, its consequences are similar to decisions we

have found to be actionable under § 1983. See, e.g., Martinez-Vélez

v. Rey-Hernández, 506 F.3d 32, 40 (1st Cir. 2007) (plaintiffs lost

opportunity for substantial overtime pay and additional duties);

Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101 (1st Cir.

1997) (plaintiffs lost supervisory positions and returned to

positions of lower rank and salary). Although Welch’s base salary

remained the same, he lost the additional stipend that accompanied

the detective sergeant position as well as the opportunity for

substantial overtime pay and additional pay related to detail and

court assignments. In addition, as detective sergeant he had been

the highest-ranking detective and had been in charge of a

department. Viewing the evidence in the light most favorable to

Welch, as we must on summary judgment, the loss of those duties is

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a significant diminution in his job responsibilities. Thus, Welch’s

non-reappointment does constitute an adverse employment action

sufficient to support a § 1983 claim.

Turning to the question who can be held liable for Welch’s

non-reappointment, we note that “[i]t is axiomatic that the

liability of persons sued in their individual capacities under

section 1983 must be gauged in terms of their own actions.” Rogan

v. Menino, 175 F.3d 75, 77 (1st Cir. 1999). We agree with the

district court that Welch has failed to adduce evidence that

Cachopa, Levine or Kowalczyk were responsible for the decision not

to reappoint Welch. Ciampa alone had the authority to make the

specialist position appointments and there is no evidence that

Levine and Kowalczyk had any involvement in his decision. Cachopa

had been placed on administrative leave several months before the

specialist position appointments were made. Perhaps he would have

acted on his threat not to reappoint Welch had he been Chief in

June 2005, but he was not and his alleged desire to see Welch lose

his detective sergeant position is not actionable under § 1983. The

district court properly granted summary judgment in favor of

Cachopa, Levine and Kowalczyk because Ciampa was the only one with

the appointment authority.

2. Harassment

Welch also asserts that he suffered retaliatory harassment

that is cognizable under § 1983. “Actions of informal harassment,

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as opposed to formal employment actions . . . can be the basis for

first amendment claims if the motive was political discrimination;

but this is so only if the discriminatory acts are ‘sufficiently

severe to cause reasonably hardy individuals to compromise their

political beliefs and associations in favor of the prevailing

party.’” Martinez-Vélez, 506 F.3d at 42 (1st Cir. 2007) (quoting

Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1217 (1st Cir.

1989) (en banc)); see also Rosario-Urdaz v. Velazco, 433 F.3d 174,

179 (1st Cir. 2006) (“[S]ubstantial campaign of harassment,

instigated or knowingly tolerated by superiors,” can form the basis

for a § 1983 claim.).

Here, most of the complained-of harassment was perpetrated by

officers who are not named as defendants. Cachopa and Ciampa argue

that they cannot be held liable for harassment by other officers.

We agree. A supervisor who does not participate in the alleged

harassment “can be held liable . . . [only] if (1) the behavior of

[his] subordinates results in a constitutional violation and (2)

the [supervisor's] action or inaction was ‘affirmatively link[ed]’

to the behavior in the sense that it could be characterized as

‘supervisory encouragement, condonation or acquiescence’ or ‘gross

negligence [of the supervisor] amounting to deliberate

indifference.’” Hegarty v. Somerset County, 53 F.3d 1367, 1379-80

(1st Cir. 1995) (citation omitted) (alterations in original). Welch

does not contend that Cachopa or Ciampa were responsible for the

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rubber rats, cartoons or bullet that were left in Welch’s mailbox.

Nor does he explain how their conduct constituted encouragement or

acquiescence in the harassment. He asserts that Ciampa rewarded

officers who engaged in harassing behavior by appointing them to

specialist positions, but does not explain how Ciampa knew or

should have known that these officers were harassing Welch. Thus,

Welch cannot hold Cachopa and Ciampa responsible for the harassment

he experienced at the hands of other police officers.

Welch does not hang his harassment claims against Cachopa and

Ciampa entirely on the supervisory liability peg. He asserts that

the pair themselves engaged in retaliatory harassment after the

recall election by making Welch complete daily activity sheets and

changing the locks to the detective office. But he does not explain

how these changes resulted in unreasonably inferior work

conditions, and the lack of evidence on this point is fatal to his

claim. See Ortiz García v. Toledo Fernández, 405 F.3d 21, 24 (1st

Cir. 2005). With respect to Cachopa’s alleged harassing comments

and “stare downs,” the relevant inquiry is whether these actions

“resulted in conditions ‘unreasonably inferior’ to the norm.”

Rosario-Urdaz, 433 F.3d at 178 (quoting Agosto-de-Feliciano, 889

F.2d at 1218-19).2 We do not believe they did and affirm the

2
In prior cases we have expressed some doubt as to the
continued applicability of Agosto-de-Feliciano after the Supreme
Court’s decision in Rutan. See, e.g., Acevedo-Garcia v. Vera-
Monroig, 204 F.3d 1, 12 (1st Cir. 2000). However, because Welch
relied on Agosto-de-Feliciano before the district court and because

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district court’s grant of summary judgment for Cachopa on this

claim. Having satisfied ourselves that Welch’s nonreappointment

supports a § 1983 claim against Ciampa, we now assess whether Welch

adduced sufficient evidence in support of his claim to survive

summary judgment.

3. Protected conduct

It is well established that government employees are protected

by the First Amendment. See Garcetti v. Ceballos, 547 U.S. 410, 417

(2006); Davignon v. Hodgson, 524 F.3d 91, 100 (1st Cir. 2008).

Welch alleges that the defendants violated his rights to free

speech and political affiliation. A government employee who alleges

that her employer has violated her First Amendment right to free

speech must satisfy our three-part test. First, she must establish

that she spoke as a citizen on a matter of public concern.

Davignon, 524 F.3d at 100. Next she must show that, “when balanced

against each other, the First Amendment interests of the plaintiff

and the public outweigh the government’s interest in functioning

efficiently.” Jordan v. Carter, 428 F.3d 67, 72 (1st Cir. 2005)

(citation omitted). If she satisfies these first two prongs, her

final hurdle is to show that her “protected speech was a

substantial or motivating factor in the adverse action against

[her].” Id. (citation omitted).

the district court applied Agosto-de-Feliciano, we assume arguendo
that Agosto-de-Feliciano applies. See Ortiz García, 405 F.3d at 23
n.4.

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 In the present case, Welch contends that the recall election

was a matter of public concern, and the defendants do not argue

otherwise. Instead, the parties’ dispute arises from the fact that

Welch chose not to speak out on the election. The defendants

contend that because he did not express an opinion on the recall

election, he did not engage in any speech protected by the First

Amendment. Refusing to speak in the face of an illegitimate request

to speak is protected conduct. See Wooley v. Maynard, 430 U.S. 705,

714 (1977); Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962,

977 (1st Cir. 1993); Sykes v. McDowell, 786 F.2d 1098, 1104 (11th

Cir. 1986) (“A public employee who positively asserts the right not

to speak when ordered to support his employer is within the

protection of the first amendment.”). The question is whether Welch

was ordered to endorse or support the recall. Welch points out that

many officers were actively involved in the recall efforts but he

does not allege that any of the defendants ordered him or attempted

to coerce him to publicly endorse the recall campaign. Thus, he has

not alleged an actionable violation of his right to free speech.

But the First Amendment also prohibits government officials

from taking adverse employment action against a non-policymaking

government employee based on the employee’s political affiliation,

see Rutan, 497 U.S. at 73-74; Elrod v. Burns, 427 U.S. 347, 373

(1976), and this theory more accurately captures the nature of

Welch’s First Amendment claim. In order to establish a prima facie

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case of political discrimination, a plaintiff must adduce evidence

that

(1) the plaintiff and the defendant belong to opposing
political affiliations; (2) the defendant has knowledge
of the plaintiff’s . . . affiliation; (3) . . . a
challenged employment action [occurred]; and (4). . .
political affiliation was a substantial or motivating
factor behind it.

Martinez-Vélez, 506 F.3d at 39 (internal quotation marks omitted)

(quoting Peguero-Moronta v. Santiago, 464 F.3d 29, 48 (1st Cir.

2006)) (alteration and omissions in original). The defendants

contend that Welch’s decision to remain neutral during the recall

campaign amounts to the absence of any political affiliation and

thus the lack of any protected political activity. They read our

precedent too narrowly.

The freedom not to support a candidate or cause is integral to

the freedom of association and freedom of political expression that

are protected by the First Amendment. See Rutan, 497 U.S. at 76

(“The First Amendment prevents the government, except in the most

compelling circumstances, from wielding its power to interfere with

its employees’ freedom to believe and associate, or to not believe

and not associate.”) (emphasis added); Roberts v. U.S. Jaycees, 468

U.S. 609, 623 (1984) (“Freedom of association . . . plainly

presupposes a freedom not to associate.”); Branti v. Finkel, 445

U.S. 507, 519 (1980) (public employment “cannot properly be

conditioned upon . . . allegiance to the political party in

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control”). Punishing an employee for failing to support the

prevailing party “unquestionably inhibits protected belief and

association.” Elrod, 427 U.S. at 359. Thus, the Supreme Court has

held that the First Amendment bars a government employer from

taking adverse employment action against an employee “solely for

not being [a] supporter[ ] of the political party in power, unless

party affiliation is an appropriate requirement for the position

involved.” Rutan, 497 U.S. at 64 (citing Elrod and Branti).

We have applied this rule to protect plaintiffs who are

members of a party that is not in power. See, e.g., Acosta-Orozco,

132 F.3d at 101; Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir.

1991). In addition, we have concluded that the risk of retaliation

is present where the plaintiff supported one faction of the same

political party of which her employer is a member, reasoning that

in primary elections, “the risk of retaliation against an employee

who supported the opposition is just as high as in any other

election.” Padilla-García, 212 F.3d at 76. We can discern no

principled basis for holding that an employee who supports an

opposition group is protected by the First Amendment but one who

chooses to remain neutral is vulnerable to retaliation. We

recognize that a plaintiff’s active support of a candidate or cause

may help the plaintiff meet her evidentiary burden of showing that

the adverse employment decision was substantially motivated by her

political affiliation. See Acevedo-Diaz v. Aponte, 1 F.3d 62, 69

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(1st Cir. 1993) (evidence of plaintiffs’ “active or prominent roles

in [the party’s] political activities” supported jury finding of

political discrimination). But neither active campaigning for a

competing party nor vocal opposition to the defendant’s political

persuasion are required. In this case, Welch adduced evidence that

officers who did not support the recall election were perceived as

opposing it. Whether Welch actually affiliated himself with the

anti-recall camp is not dispositive since the pro-recall camp

attributed to him that affiliation. In sum, we reject the

defendants’ argument that Welch’s claim fails because he chose to

remain neutral in the recall election.3

4. Proof of impermissible retaliatory motive

In order to establish a prima facie case of unconstitutional

political discrimination, Welch must establish that there is a

genuine issue of material fact as to whether his non-reappointment

was substantially motivated by his refusal to support the recall

election. “[T]he mere fact that an adverse action was taken after

an employee exercises First Amendment rights is not enough by

3
Our conclusion accords with recent decisions of the Third and
Tenth Circuits in which those courts determined that political
neutrality is protected by the First Amendment. See Gann v. Cline,
519 F.3d 1090, 1093-94 (10th Cir. 2008) (rejecting argument that
plaintiff’s political patronage claim failed because the plaintiff
did not actively campaign against her employer or demonstrate an
opposing political affiliation); Galli v. N.J. Meadowlands Comm’n,
490 F.3d 265, 272 (3d Cir. 2007) (“[T]he right not to have
allegiance to the official or party in power itself is protected
under the First Amendment, irrespective of whether an employee is
actively affiliated with an opposing candidate or party.”).

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itself to establish a prima facie case.” Acosta-Orozco, 132 F.3d at

101. But a plaintiff is not required to produce “smoking gun”

evidence of an employer’s impermissible motive to defeat a motion

for summary judgment. See Davignon, 524 F.3d at 106-07; Acosta-

Orozco, 132 F.3d at 101.

A reasonable jury could conclude that Welch would not have

been demoted but for his refusal to support the recall election.

Although we have observed that “a politically charged atmosphere .

. . without more” is insufficient to establish a causal connection

between an adverse employment action and a plaintiff’s political

affiliation (or non-affiliation), LaRou v. Ridlon, 98 F.3d 659, 661

(1st Cir. 1996) (citation omitted) (alteration in original), we

have also noted that a highly-charged political atmosphere,

combined with “the fact that plaintiffs and defendants are of

competing political persuasions, may be probative of discriminatory

animus.” Acevedo-Diaz, 1 F.3d at 69 (emphasis in original). “Where

the plaintiff is prominent in the opposition to the prevailing

faction in a highly-charged political atmosphere, and is known to

the defendant to be so, a jury can infer from these facts plus

timing that adverse action is politically motivated.” Bisbal-Ramos

v. City of Mayagüez, 467 F.3d 16, 23 (1st Cir. 2006). In the

present case, we have an undisputedly charged atmosphere in which

members of the pro-recall camp regarded those who did not support

Cachopa and the recall as being essentially of a competing

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political persuasion. In addition, when Cachopa saw Welch during

the recall campaign, he would tell Welch that he had “picked the

wrong side” and that “there are going to be changes in July.” After

Cachopa was reinstated as Chief, he selected Ciampa to be his

second-in-command over senior officers in the Department. Ciampa

had been one of the most outspoken supporters of Cachopa and the

recall election. Cachopa and Ciampa were close and shared a common

vision for the Department.3 Prior to the turmoil caused by the

recall election, there had been a custom within the Department of

reappointing people to specialist positions. Ciampa denied Welch

his reappointment at the next available opportunity following the

recall election that so divided the Department.4 Welch was one of

two people who held specialist positions and did not support the

recall. They were replaced by vocal supporters of the recall. At

the time the appointments were made in June 2005, Welch had a

spotless employment record and had never been disciplined. Although

3
In its appellate brief, the Town attempts to rebut Welch’s
theory that Ciampa and Cachopa shared a mutual vision for the
Department by citing portions of the record it did not cite before
the district court. The Town could have brought these facts to the
district court’s attention. It did not and we will not consider
facts and arguments that were not raised below. Cochran, 328 F.3d
at 11.
4
The Town asserts that Ciampa reappointed one non-supporter of
Cachopa as well as a detective who helped Welch in part of his
investigation. It also asserts that Ciampa did not appoint two pro-
recall officers, arguing that this undermines Welch’s theory that
Ciampa intended to reward Cachopa supporters. Again, the Town did
not make this argument before the district court and we will not
consider it. Cochran, 328 F.3d at 11.

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Welch has not presented overwhelming evidence that Ciampa acted

with a retaliatory motive, he has adduced enough to defeat summary

judgment. Catrone v. Thoroughbred Racing Ass’ns of N. Am., Inc.,

929 F.2d 881, 889 (1st Cir. 1991) (“[S]ummary judgment is to be

used sparingly when intent or motive is at issue . . . .”)

(citations omitted).

Ciampa is not entitled to summary judgment because the summary

judgment record would not compel a finding that Ciampa would have

taken the same action regardless of Welch’s proposed conduct.

Padilla-García, 212 F.3d at 77. We agree with Welch that the

district court erred in placing the burden on Welch to show that

the reasons articulated by Ciampa were pretextual. The district

court seemed to have applied the burden-shifting analysis used in

Title VII cases, which, we have explained, is “significantly

different” from that used in First Amendment cases. Id. In Title

VII cases, “a plaintiff is required to come forward with

affirmative evidence that the defendant's nondiscriminatory reason

is pretextual.” Id. “In a political discrimination case, the

defendant bears the burden of persuading the factfinder that its

reason is credible.” Id. at 77-78. Here, the burden lies with

Ciampa.

Ciampa asserts that he refused to reappoint Welch because he

wanted to allow other officers to gain experience in specialist

positions and that he was concerned that Welch was spending too

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much time with a regional drug task force in comparison with his

policing duties in Stoughton. But such bare assertions are no

substitute for evidence. Further, Ciampa reappointed every

specialist except for Welch and one other person who did not

support the recall, including several individuals who had held

specialist positions for several years, a fact that casts doubt on

Ciampa’s proffered reason. Because Ciampa has not shown by a

preponderance of the evidence that his decision was motivated by

non-retaliatory reasons, summary judgment is inappropriate. See

Jirau-Bernal v. Agrait, 37 F.3d 1, 4 (1st Cir. 1994) (“Summary

judgment would have been warranted . . . only if defendants’

evidentiary proffer compelled the finding that political

discrimination did not constitute a ‘but for’ cause for the

demotion.”). Thus, we reverse the district court’s grant of summary

judgment for Ciampa on Welch’s § 1983 claim.

5. Municipal liability

Municipalities cannot be held liable for the constitutional

violations of municipal employees pursuant to the doctrine of

respondeat superior. Monell v. Dep’t of Social Servs., 436 U.S.

658, 691 (1978). Under § 1983, municipalities can be liable for

constitutional violations only if the violation occurs pursuant to

an official policy or custom. Id. at 694. A plaintiff can establish

the existence of an official policy by showing that the alleged

constitutional injury was caused by a formal decision of a

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municipal legislative body, see, e.g., Owen v. City of

Independence, 445 U.S. 622 (1980), or by a person with final

policymaking authority. See City of St. Louis v. Praprotnik, 485

U.S. 112, 123-24 (1988). The district court granted summary

judgment for the Town on the grounds that Welch failed to establish

the existence of an official policy.

On appeal, Welch argues that the Town had an official policy

of “putting into power in the police department individuals who

were known to be involved in retaliation and harassment and that

this policy led to the treatment that Sergeant Welch suffered.”

Appellant’s Br. at 43. In another context this might be persuasive.

However, Welch has failed to provide a sufficient evidentiary basis

on which to impose municipal liability. Ciampa is the individual

responsible for the nonreappointment and there is no evidence that

the Board authorized Ciampa to take retaliatory action against

Welch or others who did not support the recall election. But Welch

also argues that municipal liability can be imposed because Ciampa

is an official with final policymaking authority and this argument

is persuasive. The Town asserts that a single incident of

misconduct cannot form the basis for municipal liability. Although

liability may not be imposed on a municipality for a single

instance of misconduct by an official lacking final policymaking

authority, see Oklahoma City v. Tuttle, 471 U.S. 808, 823-24

(1985), “it is plain that municipal liability may be imposed for a

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single decision by municipal policymakers under appropriate

circumstances.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480

(1986). “Municipal liability attaches only where the decisionmaker

possesses final authority to establish municipal policy with

respect to the action ordered.” Id. at 481.

The Town attempts to rely on our decision in Fabiano v.

Hopkins, 352 F.3d 447 (1st Cir. 2003), in which we held that the

firing of the plaintiff by the “relevant policymaker for the

purposes of our § 1983 analysis” did not give rise to municipal

liability because the plaintiff did “not point to any relevant City

‘policy’ beyond the mere fact that [the policymaker] decided to

fire him.” Id. at 452. The town’s reliance on Fabiano is misplaced,

however, because in Fabiano we never state that the policymaker had

the final policymaking authority.5 See, e.g., Kelley v. LaForce,

288 F.3d 1, 9 (1st Cir. 2002); Roma Constr. Co. v. aRusso, 96 F.3d

566, 576 (1st Cir. 1996); Harrington v. Almy, 977 F.2d 37, 45 (1st

Cir. 1992). We are bound by Pembaur and conclude that a single

decision by a final policymaker can result in municipal liability.

Here, the parties agree that Ciampa, as Chief of Police, is the

final policymaking official with respect to the reappointment of

5
In Bordanaro v. McLeod, 871 F.2d 1151 (1st Cir. 1989), we
cited Tuttle for the proposition that “evidence of a single event
alone cannot establish a municipal custom or policy.” Id. at 1156.
That case involved a single incident of misconduct on the part of
nonpolicymaking police officers, and we did not consider whether a
single decision by a policymaker with final authority could give
rise to municipal liability under § 1983.

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specialists. Accepting the parties’ representations as true,

liability can be imposed on the Town for Ciampa’s decision not to

reappoint Welch if that decision violated Welch’s constitutional

rights. Hence, summary judgment for the Town must be reversed.

B. Whistleblower Claim

The Massachusetts whistleblower statute prohibits public

employers from retaliating against employees who participate in any

of the act’s enumerated protected activities. Protected activities

include “[p]rovid[ing] information to, or testif[ying] before any

public body conducting an investigation, hearing or inquiry into

any violation of law.” Mass. Gen. Laws ch. 149 § 185(b)(2). In

order to prevail on a claim under the whistleblower statute, a

plaintiff must show that he engaged in protected activity and that

his participation in that activity played a substantial or

motivating part in the retaliatory action. Larch v. Mansfield Mun.

Elec. Dep’t, 272 F.3d 63, 67 (1st Cir. 2001). In granting summary

judgment for the Town on Welch’s whistleblower claim, the district

court concluded that Welch had not shown that Ciampa’s decision not

to reappoint him was motivated by Welch’s involvement in the grand

jury proceedings.6 Viewing the evidence in the light most favorable

6
Welch brought his whistleblower claim against the Town and not
Ciampa. “The Whistleblower statute permits only an ‘employer’ to be
sued, not individual supervisors.” Bennett v. City of Holyoke, 230
F. Supp. 2d 207, 221 (D. Mass. 2002) (citing Orell v. UMass Mem’l
Med. Ctr., Inc., 203 F. Supp. 2d 52, 66-67 (D. Mass. 2002)).
“Employer” is defined as “the Commonwealth, and its agencies or
political subdivisions, including, but not limited to, cities,

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to Welch and drawing all reasonable inferences in his favor, we

believe that Welch has adduced enough evidence to survive summary

judgment.7

The evidence upon which Welch relies suggests a pattern of

retaliation against individuals who were involved in the

investigation. Cachopa told Welch that he had made a mistake by

becoming involved in the investigation. When Cachopa resumed his

position as Chief, he changed the shifts of the lieutenants who had

assisted in the investigation. The consultant hired by the Town to

investigate allegations of retaliation concluded that Cachopa had

changed the lieutenants’ shifts and reduced their authority as a

result of their participation in the grand jury investigation.8

Ciampa’s elevation to the position of deputy chief is consistent

with a pattern of retaliation since, in promoting Ciampa, Cachopa

passed over higher-ranking lieutenants who participated in the

investigation. Although it was Ciampa, not Cachopa, who refused to

reappoint Welch, Ciampa owed his position of authority in the

towns, counties and regional school districts, or any authority,
commission, board or instrumentality thereof.” Mass. Gen. Laws. ch.
149, § 185(a)(2).
7
The Town does not dispute that Welch engaged in protected
activity.
8
The Town asserts that the consultant’s report constitutes
inadmissible hearsay. The Town did not raise this objection before
the district court and thus, has waived it. See O'Rourke v. City of
Providence, 235 F.3d 713, 727 (1st Cir. 2001).

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Department to Cachopa. Further, in refusing to reappoint Welch to

the detective sergeant post, Ciampa replaced Welch with an officer

who had harassed Welch and others involved in the investigation.

This is consistent with the alleged practice of punishing

individuals who were involved in the investigation and rewarding

those who opposed the investigation. We conclude that there is

circumstantial evidence sufficient to create a genuine issue of

material fact as to whether Welch was not reappointed because of

his involvement in the grand jury investigation.

C. Tortious interference claim

Welch appeals the district court’s grant of summary judgment

to Ciampa on his tortious interference claim. In order to prevail

on a claim for tortious interference with an advantageous

relationship, a plaintiff must prove the following elements:

(1) a business relationship or contemplated contract of
economic benefit; (2) the defendant’s knowledge of such
relationship; (3) the defendant’s intentional and
malicious interference with it; (4) the plaintiff’s loss
of advantage directly resulting from the defendant’s
conduct.

Comey v. Hill, 438 N.E.2d 811, 816 (Mass. 1982) (citation omitted).

The district court concluded that because Ciampa was the Town’s

policymaker with respect to the appointment of specialist

positions, there was no third-party interference with Welch’s

advantageous relations with the Town. It is true that, in general,

a plaintiff cannot bring a suit for tortious interference against

a party to the underlying contract. Harrison v. Netcentric Corp.,

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744 N.E.2d 622, 632 (Mass. 2001). In the employment context, this

usually means that “an employee may not sue her employer for

interfering with its own contract.” Zimmerman v. Direct Fed. Credit

Union, 262 F.3d 70, 76 (1st Cir. 2001). But a supervisor can be

liable for tortious interference if “‘actual malice’ . . . was the

‘controlling factor’ in the [supervisor’s] interference.” Sklar v.

Beth Israel Deaconess Med. Ctr., 797 N.E.2d 381, 385 (Mass. App.

Ct. 2003) (citation omitted). “‘[A]ctual malice’ is a ‘spiteful,

malignant purpose, unrelated to the legitimate corporate

interest.’” Cariglia v. Hertz Equip. Rental Corp., 363 F.3d 77, 88

(1st Cir. 2004) (quoting Shea v. Emmanuel Coll., 682 N.E.2d 1348,

1351 (Mass. 1997)). The district court erred in concluding that

Welch could not maintain an action for interference with

advantageous relations against Ciampa because Ciampa, representing

the Town, was representing the employer, a party to the employment

relationship. We reverse the court’s grant of summary judgment on

this claim.9 10

9
The district court noted that it was an “open question”
whether “being a specialist is an advantageous relationship
protected by the tort.” The court assumed that it was. In reversing
the decision of the district court, we express no opinion on this
question as the parties do not raise it.
10
Welch also asks us to remand the case to the district court
for the reconsideration of recently discovered evidence in support
of the whistleblower claim. We need not address this request
because we are already remanding on different grounds.

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 III. Conclusion

For the foregoing reasons, we reverse the district court’s

grant of summary judgment for Ciampa and the Town on Welch’s § 1983

claim, whistleblower claim and tortious interference claim and

remand for proceedings consistent with this opinion. We affirm the

remainder of the district court’s grant of summary judgment. Costs

are taxed against Christopher Ciampa.

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