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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