Broderick v. Evans

United States Court of Appeals
For the First Circuit

Nos. 08-1692, 08-1730

WILLIAM T. BRODERICK,

Plaintiff-Appellee/Cross-Appellant,

v.

PAUL EVANS, Individually and as Police Commissioner
of the City of Boston; CITY OF BOSTON,

Defendants-Appellants/Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before
Boudin, Tashima,* and Howard,
Circuit Judges.

Mary Jo Harris with whom Robert P. Morris and Morgan, Brown &
Joy LLP were on brief for defendants-appellants/cross-appellees.
Michael W. Reilly with whom Tommasino & Tommasino and Rosemary
Curran Scapicchio were on brief for plaintiff-appellee/cross-
appellant.

June 26, 2009

*
Of the Ninth Circuit, sitting by designation.
 BOUDIN, Circuit Judge. In 2002, then-Boston Police

Commissioner Paul Evans terminated William Broderick as a police

captain in the Boston Police Department. Broderick sued and in the

district court a jury returned a verdict against Evans under 42

U.S.C. § 1983 (2006) and against the City of Boston under the

Massachusetts whistle blower statute, Mass. Gen. Laws ch. 149, §

185 (2009). The defendants now appeal and Broderick has cross-

appealed. On sufficiency issues, we recite the facts favorably to

the verdict.

Broderick began working for the Boston Police Department

in 1977 as a patrolman and was promoted to sergeant in 1986. In

1988 Broderick was elected president of the Superior Officers Union

("the Federation"), a full-time position he held until 2000. From

this early time dates a relationship between Broderick and certain

of his superiors, including Evans, of conflict and distrust. The

history includes public charges and law suits by Broderick and, on

the department's side, disciplinary proceedings against Broderick

and orders that he undergo psychiatric examinations.

Highlights are described in the district judge's

decisions and orders in this case, including his detailed but

unreported decision denying Evans' and the city's motion for

summary judgment. Other litigation occurred in federal and state

court, e.g., Broderick v. Roache, 996 F.2d 1294 (1st Cir. 1993);

Broderick v. Roache, 767 F. Supp. 20 (D. Mass. 1991), and before

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the state Labor Relations Commission. Several episodes are

important to the present case.

First, soon after he became union president, Broderick

began to have disagreements with then-Commissioner Roache and with

Evans, who was then police superintendent. In 1989, Broderick sued

them claiming that he had been denied a promotion to lieutenant due

to his union activity. Evans suspended him and ordered him to

undergo a psychiatric exam. In 1992 the state Labor Relations

Commission found that Roache and Evans had acted out of spite and

anti-union animus and awarded Broderick back wages and ordered

rescission of disciplinary sanctions.

In 1995, the parties settled Broderick's law suit. He

was promoted to lieutenant retroactively with compensation, and got

a commitment that his eligibility for promotion to captain would be

arbitrated. In 1996, the arbitrator found that Broderick had been

denied promotion to captain based on his union activities and

ordered his promotion retroactive to 1992. According to Broderick,

at his promotion ceremony Evans said that Broderick "lacked the

integrity" for the position.

Second, when Broderick lost his bid for reelection as

union president in 2000, Evans appointed him as supervisor of cases

in the Suffolk Superior Court, a position normally given to a

sergeant; admittedly, Broderick had not been engaged in policing

for some years. In his new position, Broderick signed officers'

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overtime slips when they were needed in court, concluded that

officers were abusing the system, and complained about it. This

led to embroilment with commanders of other units and individual

officers, to the filing of internal complaints by Broderick against

others (and their complaints against him), and to an internal

investigation in which Broderick refused to cooperate.

Third, in February 2002, Broderick (according to his

testimony) was cursed by occupants of a van at Downtown Crossing in

Boston, was almost run down leading to an accidental discharge of

his gun, pursued the van, and found it occupied by Suffolk County

investigators who worked with the police Broderick had been

investigating for overtime abuses. The van's occupants were

arrested, but Evans arranged for their release and placed Broderick

on administrative leave.

Broderick was later exonerated of wrongdoing in the gun

discharge by the state police, although he was criticized for how

he handled the incident, which included commandeering a taxi to

chase the van after the insults were shouted at him. An internal

affairs investigation also initially cleared him of other

wrongdoing in the incident.

Fourth, on April 29, 2002, after internal affairs

initially cleared him, Broderick was told he could go back to work

in two days but that he had to submit to a physical and psychiatric

exam. Broderick objected to the psychiatric exam, did not attend

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it or various hearings on pending disciplinary charges, was given

brief suspensions, and his mental and physical health began to

deteriorate. In July Broderick sued in state court the city, Evans

and another superior for retaliating against him for his complaints

about overtime abuses.

Finally, at the beginning of August 2002, Broderick

advised the city that he would be seeking early retirement and

asked that further disciplinary action be placed on hold, and he

later applied for a disability retirement. Evans refused to

postpone pending disciplinary action; Broderick refused to attend,

although saying he would now submit to a psychiatric exam. After

much further maneuvering and further warnings, Broderick was

terminated effective November 20.1

In the meantime, Evans and the city had removed

Broderick's pending state court lawsuit to federal court.

Following his termination, Broderick amended his complaint to

include the termination. On pretrial motions, claims and

defendants were pared down, but three relevant claims survived and

proceeded to a jury trial--all based on Broderick's dismissal and

incidents connected to it:

1
Formally, the dismissal flowed from a series of complaints
filed on September 11, 2002, against Broderick by a senior officer
for past failures to report for the psychiatric exam, for failing
to return his department issued vehicle, for failing to report for
the imposition of discipline, and for failing to submit medical
documentation providing a reason for his failure to appear at a
prior disciplinary hearing.

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 first, that in violation of 42 U.S.C. § 1983, Evans
had contravened Broderick's right under the First
Amendment to be free from retaliation for engaging in
protected speech about the overtime abuses;

second, that Evans, also in violation of section
1983, had retaliated against Broderick for exercising his
constitutional right to petition courts; and

third, that through Evans and others the city had
retaliated against Broderick in violation of the state
whistle blower statute, Mass. Gen. Laws ch. 149, § 185.

After a seven-day trial in April 2006, the jury found in

favor of Broderick on all three counts, and it awarded him $211,000

in back pay, $791,000 in forward pay, and compensation of $563,626

to cover taxes on the award. It rejected Broderick's claim to

damages for emotional distress. The district court precluded the

jury from awarding punitive damages on the section 1983 counts,

finding that the evidence did not support the necessary heightened

showing.

The district court denied various post-verdict motions by

Evans and the city with one exception: on March 30, 2007, it

granted Evans' renewed motion for qualified immunity as to the

first of the three claims listed above, ruling that under a then-

recent Supreme Court decision Broderick's speech about the overtime

abuses was not protected under the First Amendment; but this did

not affect the award of damages based on the law suit.

A defense motion for remittitur was denied and Broderick

was eventually awarded attorney's fees and costs. Final judgment

entered and both parties now appeal, raising multiple claims of

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error. We begin with the claims by Evans and the city attacking

the adequacy of the evidence to support liability, the denial of

qualified immunity for Evans, and the refusal of the court to order

remittitur.

The claim that the evidence of liability was inadequate

comes in two parts: (1) that no rational jury could have found that

Broderick's discharge was "substantially motivated" by an aim to

retaliate for his lawsuit or reports of overtime abuses, Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287

(1977)(the showing needed for liability); and (2) that, in any

case, the defendants showed that Broderick would have been fired

even absent the protected conduct, id. (the so-called Mount Healthy

defense).

So far as the defendants claim that a verdict should have

been entered in their favor, fair inferences and credibility issues

are resolved in favor of the verdict and our review of the district

court's refusal to enter judgment as a matter of law is de novo.

Lockhart-Bembery v. Sauro, 498 F.3d 69, 74 (1st Cir. 2007); Muniz-

Olivari v. Stiefel Labs., Inc., 496 F.3d 29, 35 (1st Cir. 2007).

The district court also declined to grant a new trial on the ground

that the verdict was against the weight of the evidence; on this

issue our review is for abuse of discretion. Colon-Millin v. Sears

Roebuck De Puerto Rico, Inc., 455 F.3d 30, 35 (1st Cir. 2006).

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 Although Broderick complained about various other

incidents--the ordered physical exam, the handling of disciplinary

complaints against him, the refusal to delay proceedings--it is

simplest and sufficient to focus on his discharge, which was the

culminating event. The city and Evans say that the evidence

revealed no more than a temporal connection between Broderick's

protected activities and the adverse employment actions. See

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

1997).

Some of Broderick's activities may have been justified;

others, less so, but either way he was clearly a difficult

subordinate. He publicly accused Evans and the department of

racism in one episode and of improper searches and seizures in

another; he refused to cooperate in the investigation of overtime

abuses that he had himself prompted; the Downtown Crossing incident

was disturbing; he refused to show up for hearings; he quarreled

with other officers; and he brought multiple law suits against

Evans and others.

So Evans and the city would in any event have had reason

for wishing Broderick gone, but both of the assertedly protected

activities caused further trouble for Evans and, in assigning

weight to possible motives, the jury had evidence that Evans, the

city or both had been found in the wrong as to Broderick's

promotions; that Evans had made critical remarks about Broderick's

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integrity; that psychological testing was not required in all

accidental firearm discharge cases; and that deferring discipline

to allow retirement is allegedly a common practice.

Because there were good as well as more doubtful reasons

for wanting Broderick terminated, a certain amount of intuition is

required in discerning the mix of motives. The district judge

seems to have thought that Broderick's case was thin, as do we; and

the jury may have felt that Broderick was unfairly treated in

respects independent of his law suit or overtime dispute. But we

cannot say that the jury was irrational in concluding that

protected conduct played enough of a role in the mix to support a

verdict.

Evans' position is weaker by far as to the Mount Healthy

defense. The Mount Healthy defense, applicable only to the section

1983 claims against Evans, requires the defendant to show that even

if an improper motive played a part, the adverse action would have

been taken for legitimate reasons. Evans likely had justification

for terminating Broderick; but no one can say for sure that, absent

protected conduct, Evans would have refused to postpone

disciplinary proceedings, as opposed to allowing Broderick to try

to retire on disability. The jury's rejection of the defense was

thus rational.

As for the motion for a new trial, judges rarely grant

new trials on the ground that the evidence permitted the verdict

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but leaned against it; and appellate courts still more rarely

regard a refusal to grant such motions as an abuse of discretion.

Credibility disputes and conflicting inferences make plenty of

verdicts doubtful; but unless the judge on the scene thinks that

the result is manifestly unjust, and has some hope of a different

outcome on retrial, it is time to move on.

We turn next to Evans' qualified immunity claim. The

district judge initially rejected qualified immunity as to both

section 1983 claims (only the city was a defendant on the remaining

state law claim submitted to the jury). Then, after the verdict

and based on a new Supreme Court case, Garcetti v. Ceballos, 126 S.

Ct. 1951 (2006), the district judge held that under that new

decision Broderick's complaints about overtime abuses were not

protected speech and, as to this, granted qualified immunity

retrospectively.

Broderick says that the district court was mistaken but

says that the issue is irrelevant if the judgment is not otherwise

disturbed on appeal: the jury independently awarded the same

damages against Evans on the other section 1983 claim, namely, that

Evans was retaliating because Broderick had filed a law suit

against him. The district court held that filing the law suit was

still protected by the First Amendment, citing Supreme Court case

law. Broderick v. Evans, No. 02-11540, 2007 WL 967861, at *2 (D.

Mass. Mar. 30, 2007).

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 Evans does not now contest this latter ruling or argue

that a retaliatory purpose in taking adverse actions against

Broderick for filing the law suit would be protected by qualified

immunity. He simply repeats, under the qualified immunity heading,

his merits arguments that the evidence failed to show that

retaliation either for the complaints or for the law suit was a

substantial motivating factor in adverse actions taken against

Broderick and that, in any event, the same actions would inevitably

have been taken absent protected conduct. Our prior discussion of

those factual claims need not be repeated.

Finally, the defendants argue that remittitur should have

been ordered because the jury's award of damages was excessive.

The failure to grant remittitur is reviewed for abuse of

discretion, which we find only if a "jury's verdict exceeds 'any

rational appraisal or estimate of the damages that could be based

on the evidence before the jury.'" Smith v. Kmart Corp., 177 F.3d

19, 29-30 (1st Cir. 1999) (citations omitted).

The gist of the defendants' argument is that after

termination Broderick made no effort to obtain other employment

despite holding a law degree, i.e., failed to mitigate damages.

Although they presented no evidence of possible jobs Broderick

might have pursued or the pay he might have earned, they rely on

Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1 (1st Cir. 1999).

In Quint, we held that the complete failure to seek other

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employment obviates the employer's need to show the availability of

substantially equivalent jobs. Id. at 16.

Here, Broderick did in substance offer evidence allowing

the jury to conclude that he likely could not have found a job

earning substantial income. Although he had a law degree, he was

52 at the time he was terminated and had no experience as an

attorney. His dismissal for cause would have complicated an

attempt to find law enforcement work. And Broderick's mental

health had deteriorated, which would certainly have made finding

and holding a substantial job more difficult.

The defendants, as already noted, offered no evidence as

to Broderick's opportunities and did not focus on the mitigation

defense in closing. The jury awarded no damages for emotional

distress; the awards of front and back pay were much lower than the

amounts to which Broderick testified would represent his past and

future income losses; and Broderick further testified that he was

forced to cash in his pension following his termination to pay for

living expenses. The district court's refusal to grant remittitur

was not error.

Broderick argues on cross-appeal that there was

sufficient evidence to submit the question of punitive damages to

the jury. Because the district judge's refusal effectively granted

defendants' judgment as a matter of law, our review is de novo.

Powell v. Alexander, 391 F.3d 1, 15 (1st Cir. 2004). Punitive

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damages are available where "the defendant's conduct is shown to be

motivated by evil motive or intent, or . . . involves reckless or

callous indifference to the federally protected rights of others."

Id. (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).

At first blush, Broderick might seem to have a

mechanically correct claim: that an improper retaliatory purpose

was an element in his successful claim against Evans under section

1983 and that a jury could infer that such a purpose--to punish

Broderick for filing a law suit--is inherently wicked or reckless.

See Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 41-42 (1st Cir.

2003); see also Powell, 391 F.3d at 19. Yet in this somewhat

unusual situation, punitive damages would be wrong and close to a

miscarriage of justice.

Mixed motives are common in both discrimination and First

Amendment cases, but ordinarily in successful cases there is

unequivocal evidence that the defendant acted at least in part out

of a reprehensible motive such as racial or gender discrimination

or a clear-cut desire to punish free speech; often, as well, the

circumstances are vivid or egregious. E.g., Rodriguez-Marin v.

Rivera-Gonzalez, 438 F.3d 72, 76-79 (1st Cir. 2006) (political

discrimination); Powell, 391 F.3d at 19 (defendant concealed

information to prevent reinstatement of officer who had filed a

lawsuit); Che, 342 F.3d at 35-36 (racially offensive comments and

unfair treatment).

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 In the present case, there is no direct evidence that

Evans acted in whole or in part to retaliate for the law suit.

Broderick stresses that Evans testified that he "knew" he could end

up in court based on the handling of Broderick's case, but in

context Evans was plainly referring to the fact that he knew

Broderick was likely to sue, not to a perception that his actions

would likely violate the law. Broderick had sued before on several

occasions, Evan's apprehension was reasonable and it certainly was

not an admission of deliberate wrongdoing.

Further, although the defense could not prove that

Broderick would inevitably have been dismissed even without the law

suit, his behavior over a substantial period would have given the

most tolerant of employers reasons several times over to be glad to

be rid of him. To the extent that the jury inferred that the law

suit was a substantial motivating reason, this reason had to be

submerged in a welter of other reasons, some good and some less so,

but not themselves bases for a constitutional retaliation claim.

Finally, no evidence shows that Evans had any conscious

purpose to violate the law. See Kolstad v. Am. Dental Ass'n, 527

U.S. 526, 535 (1999); Iacobucci v. Boulter, 193 F.3d 14, 26 (1st

Cir. 1999). Deterrence, often an important element in punitive

damages,2 is hardly an objective in this case. Nothing

2
See Smith, 461 U.S. at 49; Gutierrez-Rodriguez v. Cartagena,
882 F.2d 553, 581 (1st Cir. 1989); Alicea Rosado v. Garcia
Santiago, 562 F.2d 114, 121 (1st Cir. 1977).

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contradicted Evans' own testimony that he put up with more from

Broderick than he would have tolerated from anyone else. The

district court's refusal to send the punitive damages issue to the

jury in this unusual case may lack precedent; we supply that

precedent now.

The trial judge handled a very difficult case, prolonged

by the lengthy history between the parties, fairly and with

balanced judgment. On this appeal, we leave the outcome unaltered

and affirm the judgment. Each side will bear its own costs on the

appeal.

It is so ordered.

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