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Delaney v. Town of Abington

United States Court of Appeals, First Circuit

May 4, 2018

TOM DELANEY, Plaintiff, Appellant,


          John J. Hightower, for appellant.

          Deborah I. Ecker, with whom Joseph S. Fair and KP Law, P.C. were on brief, for defendant-appellees.

          Todd M. Blume, Assistant Attorney General of Massachusetts, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for interested party Massachusetts Attorney General.

          Before Lynch, Stahl, and Barron, Circuit Judges

          BARRON, Circuit Judge.

         This appeal arises out of a lawsuit Tom Delaney brought against the Town of Abington, Massachusetts and leaders of the Abington Police Department (Department) -- Chief David Majenski, Deputy Chief Christopher Cutter, and Lieutenant Kevin Sullivan. Delaney brought a variety of federal and state law claims in which he alleged that, while he was an officer in the Department, the defendants retaliated against him for (1) filing reports with the Massachusetts Office of Attorney General (AG Office) that raised concerns about a traffic ticketing policy that he contends that the Department had adopted and (2) engaging in union activity.

         The District Court granted summary judgment to the defendants on all of Delaney's claims, and Delaney now appeals that ruling as well as the District Court's order granting the AG Office's motion to quash a subpoena. We affirm.


         According to Delaney's complaint, in January 2013 he was informed about what he characterizes as the Department's "Money Ticket Quota System." Delaney contends that this system required patrol officers to issue more money citations than warnings.

         At the Department's police roll call on May 29, 2013, Delaney approached his supervisor to register his concern that this "system" was unlawful under Newton Police Association v. Police Chief of Newton, 828 N.E.2d 952 (Mass. App. Ct. 2005). In that case, the Massachusetts Appeals Court held that a police chief's order "directing officers assigned to traffic enforcement . . . to issue traffic violation citations to traffic offenders, and to cease issuing written warnings" ran afoul of a state statute, Mass. Gen. Laws ch. 90C, § 3(A)(1), which "confer[s] independence on officers assigned to traffic enforcement duty" as to whether or not to issue tickets or warnings. Newton, 828 N.E.2d at 953-54. Delaney also told his supervisor at that time that he did not want to follow the alleged ticketing system and handed him a copy of Department Rule 7.0, which the parties agree concerns compliance with unlawful orders.

         Delaney later filed a report with the AG Office in which he set forth his concerns about the lawfulness of the ticketing system. He first filed the report on April 7, 2014, and later refiled the same report on October 14, 2014, apparently because the AG Office lost the report after he filed it the first time. Delaney alleges that, in retaliation for these filings, the defendants subjected him to a number of adverse employment actions. Delaney separately alleges that, following his election as president of the patrolmen's union in April 2014, the defendants retaliated against him for his union activity.

         On May 1, 2015, Delaney brought this suit in state court in Massachusetts. His complaint sought relief for two claims under § 1983 based on retaliation for the exercise of his First Amendment rights in connection with, respectively, the concerns that he had raised with the AG Office regarding the ticketing system and his union activity. He also brought Massachusetts law claims pursuant to the Commonwealth's whistleblower statute, Mass. Gen. Laws ch. 149, § 185, and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12 §§ 11H, 11I. Finally, he brought a Massachusetts common law claim for intentional infliction of emotional distress.

         The defendants removed the case to federal court in the District of Massachusetts. During discovery, Delaney subpoenaed the AG Office for documents concerning whether that office had told Majenski about the report that Delaney had filed with it. After the AG Office complied with this subpoena, Delaney filed a subpoena to depose the office, which it moved to quash. The District Court granted the motion to quash.

         Following discovery, the District Court granted the defendants' motion for summary judgment as to all claims. Delaney v. Town of Abington, 211 F.Supp.3d 397, 407-08 (D. Mass. 2016). Delaney now brings this appeal, in which he challenges both the summary judgment ruling and the order granting the motion to quash.


         We start with Delaney's challenge to the District Court's grant of summary judgment as to the two claims that he brings under § 1983 for retaliation against him for exercising his First Amendment rights -- the first of which concerns his filings with the AG Office and the second of which concerns his union activity. Our review is de novo. See Sánchez-Figueroa v. Banco Popular de P.R., 527 F.3d 209, 213 (1st Cir. 2008). We must draw all inferences in favor of the nonmoving party, id. at 211, and then determine whether the District Court was right that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).


         To prove that a public employer violated the First Amendment rights of a public employee by subjecting him to an adverse employment action in retaliation for engaging in protected speech, the employee first must show that he "spoke as a citizen, " Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)), and "that the speech was on a matter of public concern." Id. If the public employee can make that showing, then "[t]he question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Id.; see also Pickering v. Bd. of Educ. of Twp. High School Dist. 205, Will Cty., Ill., 391 U.S. 563, 568 (1968). The Supreme Court has made clear that "[t]his consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations." Garcetti, 547 U.S. at 418.

         Even if the public employee can succeed in showing that the public employer lacked such a justification, however, the public employee must still show a causal connection between the alleged retaliatory action and the protected expression. To do so, the public employee must demonstrate "that the protected expression was a substantial or motivating factor in the adverse employment decision." Curran, 509 F.3d at 45. In the event that the public employee makes that showing, the defendant may then avoid liability by showing that it would have undertaken the adverse employment action regardless of the plaintiff's protected conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 131 (1st Cir. 2004).

         Finally, it is important to emphasize that not every action that an employer takes that a public employee may dislike constitutes the kind of adverse employment action that can ground a First Amendment retaliation claim. Rather, the adverse employment action must be "one that 'affect[s] employment or alter[s] the conditions of the workplace.'" Morales-Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010) (alterations in original) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61-62 (2006)). Such an action "typically involves discrete changes in the terms of employment, such as 'hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.'" Id. (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).


         The District Court granted summary judgment to the defendants as to the first of Delaney's two § 1983 First Amendment retaliation claims because Delaney failed to show that there is a genuine issue of material fact about whether his filing of the reports with the AG Office were "a substantial or motivating factor in the adverse employment decision[s]" that he alleged had been taken against him. Curran, 509 F.3d at 45. In so ruling, the District Court considered two separate time periods -- the one that ran from when Delaney first filed the AG Office report, in April 2014, to when he re-filed the report, in October 2014, ...

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