FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]
J. Hightower, for appellant.
Deborah I. Ecker, with whom Joseph S. Fair and KP Law, P.C.
were on brief, for defendant-appellees.
M. Blume, Assistant Attorney General of Massachusetts, with
whom Maura Healey, Attorney General of Massachusetts, was on
brief, for interested party Massachusetts Attorney General.
Lynch, Stahl, and Barron, Circuit Judges
BARRON, Circuit Judge.
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.
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.
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.
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.
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
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
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.
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.
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).
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.
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).
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,
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, ...